G.R. No.
46496, February 27, 1940
ANG TIBAY, REPRESENTED BY TORIBIO TEODORO, MANAGER
AND PROPRIETOR, AND NATIONAL WORKERS' BROTHERHOOD,
PETITIONERS, VS. THE COURT OF INDUSTRIAL RELATIONS AND
NATIONAL LABOR UNION, INC., RESPONDENTS.
DECISION
LAUREL, J.:
The Solicitor-General in behalf of the respondent Court of Industrial
Relations in the above-entitled case has filed a motion for reconsideration
and moves that, for the reasons stated in his motion, we reconsider the
following legal conclusions of the majority opinion of this Court:
"1. Que un contrato de trabajo, asi individual como colectivo, sin termino
fijo de duracion o que no sea para una determinada, termina o bien por
voluntad de cualquiera de las partes o cada vez que llega el plazo fijado
para el pago de los salarios segun costumbre en la localidad o cuando se
termine la obra;
"2. Que los obreros de una empresa fabril, que han celebrado contrato,
ya individual ya colectivamente, con ella, sin tiempo fijo, y que se han
visto obligados a cesar en sus trabajos por haberse declarado paro
forzoso en la fabrica en la cual trabajan, dejan de ser empleados u
obreros de la misma;
"3. Que un patrono o sociedad que ha celebrado un contrato colectivo de
trabajo con sus obreros sin tiempo fijo de duracion y sin ser para una
obra determinada y que se niega a readmitir a dichos obreros que
cesaron como consecuencia de un paro forzoso, no es culpable de
practica injusta ni incurre en la sancion penal del articulo 5 de la Ley No.
213 del Commonwealth, aunque su negativa a readmitir se deba a que
dichos obreros pertenecen a un determinado organismo obrero, puesto
que tales ya han dejado de ser empleados suyos por terminacion del
contrato en virtud del paro."
The respondent National Labor Union, Inc., on the other hand, prays for
the vacation of the judgment rendered by the majority of this Court and
the remanding of the case to the Court of Industrial Relations for a new
trial, and avers:
"1. That Toribio Teodoro's claim that on September 26, 1938, there was
shortage of leather soles in ang tibay making it necessary for him to
temporarily lay off the members of the National Labor Union Inc., is
entirely false and unsupported by the records of the Bureau of Customs
and the Books of Accounts of native dealers in leather.
"2. That the supposed lack of leather materials claimed by Toribio
Teodoro was but a scheme adopted to systematically discharge all the
members of the National Labor Union, Inc., from work.
"3. That Toribio Teodoro's letter to the Philippine Army dated September
29, 1938, (re supposed delay of leather soles from the States) was but a
scheme to systematically prevent the forfeiture of this bond despite the
breach of his contract with the Philippine Army.
"4. That the National Workers' Brotherhood of ang TIBAY is a company or
employer union dominated by Toribio Teodoro, the existence and
functions of which are illegal. (281 U. S., 548, petitioner's printed
memorandum, p. 25.)
"5. That in the exercise by the laborers of their rights to collective
bargaining, majority rule and elective representation are highly essential
and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.)
"6. That the century provisions of the Civil Code which had been (the)
principal source of dissensions and continuous civil war in Spain cannot
and should not be made applicable in interpreting and applying the
salutary provisions of a modern labor legislation of American origin where
industrial peace has always been the rule.
"7. That the employer Toribio Teodoro was guilty of unfair labor practice
for discriminating against the National Labor Union, Inc., and unjustly
favoring the National Workers' Brotherhood.
"8. That the exhibits hereto attached are so inaccessible to the
respondents that even with the exercise of due diligence they could not
be expected to have obtained them and offered as evidence in the Court
of Industrial Relations.
"9. That the attached documents and exhibits are of such far-reaching
importance and effect that their admission would necessarily mean the
modification and reversal of the judgment rendered herein."
The petitioner, Ang Tibay, has filed an opposition both to the motion for
reconsideration of the respondent Court of Industrial Relations and to the
motion for new trial of the respondent National Labor Uuion, Inc.
In view of the conclusion reached by us and to be hereinafter stated with
reference to the motion for a new trial of the respondent National Labor
Union, Inc., we are of the opinion that it is not necessary to pass upon the
motion for reconsideration of the Solicitor-General. We shall proceed to
dispose of the motion for new trial of the respondent labor union. Before
doing this, however, we deem it necessary, in the interest of orderly
procedure in cases of this nature, to make several observations regarding
the nature of the powers of the Court of Industrial Relations and
emphasize certain guiding principles which should be observed in the trial
of cases brought before it. We have re-examined the entire record of the
proceedings had before the Court of Industrial Relations in this case, and
we have found no substantial evidence to indicate that the exclusion of
the 89 laborers here was due to their union affiliation or activity. The
whole transcript taken contains what transpired during the hearing and is
more of a record of contradictory and conflicting statements of opposing
counsel, with sporadic conclusion drawn to suit their own views. It is
evident that these statements and expressions of views of counsel have
no evidentiary value.
The Court of Industrial Relations is a special court whose functions are
specifically stated in the law of its creation (Commonwealth Act No. 103).
It is more an administrative board than a part of the integrated judicial
system of the nation. It is not intended to be a mere receptive organ of the
Government. Unlike a court of justice which is essentially passive, acting
only when its jurisdiction is invoked and deciding only cases that are
presented to it by the parties litigant, the function of the Court of Industrial
Relations, as will appear from perusal of its organic law, is more active,
affirmative and dynamic. It not only exercises judicial or quasi-judicial
functions in the determination of disputes between employers and
employees but its functions are far more comprehensive and extensive. It
has jurisdiction over the entire Philippines, to consider, investigate,
decide, and settle any question, matter controversy or dispute arising
between, and/or affecting, employers and employees or laborers, and
landlords and tenants or farm-laborers, and regulate the relations
between them, subject to, and in accordance with, the provisions of
Commonwealth Act No. 103 (section 1). It shall take cognizance for
purposes of prevention, arbitration, decision and settlement, of any
industrial or agricultural dispute causing or likely to cause a strike or
lockout, arising from differences as regards wages, shares or
compensation, hours of labor or conditions of tenancy or employment,
between employers and employees or laborers and between landlords
and tenants or farm-laborers, provided that the number of employees,
laborers or tenants or farm-laborers involved exceeds thirty, and such
industrial or agricultural dispute is submitted to the Court by the Secretary
of Labor or by any or both of the parties to the controversy and certified
by the Secretary of Labor as existing and proper to be dealth with by the
Court for the sake of public interest. (Section 4, ibid.) It shall, before
hearing the dispute and in the course of such hearing, endeavor to
reconcile the parties and induce them to settle the dispute by amicable
agreement. (Paragraph 2, section 4, ibid.) When directed by the President
of the Philippines, it shall investigate and study all pertinent facts related
to the industry concerned or to the industries established in a designated
locality, with a view to determining the necessity and fairness of fixing and
adopting for such industry or locality a minimum VOLUME 69. 641 wage
or share of laborers or tenants, or a maximum "canon" or rental to be paid
by the "inquilinos" or tenants or lessees to landowners. (Section 5, ibid.)
In fine, it may appeal to voluntary arbitration in the settlement of industrial
disputes ; may employ mediation or conciliation for that purpose, or recur
to the more effective system of official investigation and compulsory
arbitration in order to determine specific controversies between labor and
capital in industry and in agriculture. There is, in reality here a mingling of
executive and judicial functions, which is a departure from the rigid
doctrine of the separation of governmental powers.
In the case of Goseco vs. Court of Industrial Relations et al., G. R. No.
46673, promulgated September 13,1939, we had occasion to point out
that the Court of Industrial Relations is not narrowly constrained by
technical rules of procedure, and the Act requires it to "act according to
justice and equity and substantial merits of the case, without regard to
technicalities or legal forms and shall not be bound by any technical rules
of legal evidence but may inform its mind in such manner as it may deem
just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not
be restricted to the specific relief claimed or demands made by the parties
to the industrial or agricultural dispute, but may include in the award,
order or decision any matter or determination which may be deemed
necessary or expedient for the purpose of settling the dispute or of
preventing further industrial or agricultural disputes. (Section 13, ibid.)
And in the light of this legislative policy, appeals to this Court have been
especially regulated by the rules recently promulgated by this Court to
carry into effect the avowed legislative purpose. The fact, however, that
the Court of Industrial Relations may be said to be free from the rigidity of
certain procedural requirements does not mean that it can, in justiciable
cases coming before it, entirely ignore or disregard the fundamental and
essential requirements of due process in trials and investigations of an
administrative character. There are cardinal primary rights which must be
respected even in proceedings of this character:
(1) The first of these rights is the right to a hearing, which includes the
right of the party interested or affected to present his own case and
submit evidence in support thereof. In the language of Chief Justice
Hughes, in Morgan v. U. S., 304 U. S. 1, 58 S. Ct. 773, 999, 82 Law. ed.
1129, "the liberty and property of the citizen shall be protected by the
rudimentary requirements of fair play."
(2) Not only must the party be given an opportunity to present his case
and to adduce evidence tending to establish the rights which he asserts
but the tribunal must consider the evidence presented. (Chief Justice
Hughes in Morgan v. U. S. 298 U. S. 468, 56 S. Ct 906, 80 Law. ed.
1288.) In the language of this Court in Edwards vs. McCoy, 22 Phil, 598,
"the right to adduce evidence, without the corresponding duty on the part
of the board to consider it, is vain. Such right is conspicuously futile if the
person or persons to whom the evidence is presented can thrust it aside
without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to decide
right, it does imply a necessity which cannot be disregarded, namely, that
of having something to support its decision. A decision with absolutely
nothing to support it is a nullity, a place when directly attached." (Edwards
vs. McCoy, supra.) This principle emanates from the more fundamental
principle that the genius of constitutional government is contrary to the
vesting of unlimited power anywhere. Law is both a grant and a limitation
upon power.
(4) Not only must there be some evidence to support a finding or
conclusion (City of Manila vs. Agustin, G. R. No. 45344, promulgated
November 29, 1937, XXXVI 0. G. 1335), but the evidence must be
"substantial." (Washington, Virginia & Maryland Coach Co. v. National
Labor Relations Board, 301 U. S. 142, 147, 57 S. Ct. 648, 650, 81 Law.
ed. 965.) "Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." VOLUME 69. 643 (Appalachian Electric Power
v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National
Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15;
Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir.,
98 F. 2d 758, 760.) * • * The statute provides that 'the rules of evidence
prevailing in courts of law and equity shall not be controlling.' The obvious
purpose of this and similar provisions is to free administrative boards from
the compulsion of technical rules so that the mere admission of matter
which would be deemed incompetent in judicial proceedings would not
invalidate the administrative order. (Interstate Commerce Commission v.
Baird, 194 U. S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate
Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 93,
33 S. Ct. 185,187, 57 Law. ed. 431; United States v. Abilene & Southern
Ry. Co., 265 U. S. 274, 288, 44 S. Ct. 565, 569, 68 Law. ed. 1016; Tagg
Bros. & Moorhead v. United States, 280 U. S. 420, 442, 50 S. Ct. 220,
225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in
administrative procedure does not go so far as to justify orders without a
basis in evidence ha^injy^tiojiajjar^^ Mere uncorroboratborated hearsay or
rumor does not constitute substantial evidence. (Consolidated Edison Co.
v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv.
Op., p. 131.)"
(5) The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the parties
affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U. S.
88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative
tribunal to the evidence disclosed to the parties, can the latter be
protected in their right to know and meet the case against them. It should
not, however, detract from their duty actively to see that the law is
enforced, and for that purpose, to use the authorized legal methods of
securing evidence and informing itself of facts material and relevant to the
controversy. Boards of inquiry may be appointed for the purpose of
investigating and determining the facts in anygiven case, but their report
and decision are only advisory. (Section 9, Commonwealth Act No. 103.)
The Court of Industrial Relations may refer any industrial or agricultural
dispute or .any matter under its consideration or advisement to a local
board of inquiry, a provincial fiscal, a justice of the peace or any public
official in any part of the Philippines for investigation, report and
recommendation, and may delegate to such board or public official such
powers and functions as the said Court of Industrial Relations may deem
necessary, but such delegation shall not affect the exercise of the Court
itself of any of its powers. (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore, must
act on its or his own independent consideration of the law and facts of the
controversy, and not simply accept the views of a subordinate in arriving
at a decision. It may be that the volume of work is such that it is literally
impossible for the titular heads of the Court of Industrial Relations
personally to decide all controversies coming before them. In the United
States the difficulty is solved with the enactment of statutory authority
authorizing examiners or other subordinates to render final decision, with
right to appeal to board or commission, but in our case there is no such
statutory authority.
(7) The Court of Industrial Relations should, in all controversial questions,
render its decision in such a manner that the parties to the proceeding
can know the various issues involved, and the reasons for the decisions
rendered. The performance of this duty is inseparable from the authority
conferred upon it.

In the light of the foregoing fundamental principles, it is sufficient to

observe here that, except as to the alleged agreement between the Ang
Tibay and the National Workers' Brotherhood (appendix A), the record is
barren and does not satisfy the thirst for a factual basis upon which to
predicate, in a rational way, a conclusion of law.

This result, however, does not now preclude the concession of a new trial
prayed for by the respondent National Labor Union, Inc. In the portion of
the petition hereinabove quoted of the National Labor Union, Inc., it is
alleged that "the supposed lack of leather material claimed by Toribio
Teodoro was but a scheme adopted to systematically discharge all the
members of the National Labor Union, Inc., from work" and this averment
is desired to be proved by the petitioner with the "records of the Bureau of
Customs and the Books of Accounts of native dealers in leather"; that "the
National Workers' Brotherhood Union of Ang Tibay is a company or
employer union dominated by Toribio Teodoro, the existence and
functions of which are illegal." Petitioner further alleges under oath that
the exhibits attached to the petition to prove his substantial averments
"are so inaccessible to the respondents that even with the exercise of due
diligence they could not be expected to have obtained them and offered
as evidence in the Court of Industrial Relations", and that the documents
attached to the petition "are of such far reaching importance and effect
that their admission would necessarily mean the modification and reversal
of the judgment rendered therein." We have considered the reply of Ang
Tibay and its arguments against the petition. By and large, after
considerable discussion, we have come to the conclusion that the interest
of justice would be better served if the movant is given opportunity to
present at the hearing the documents referred to in his motion and such
other evidence as may be relevant to the main issue involved. The
legislation which created the Court of Industrial Relations and under
which it acts is new. The failure to grasp the fundamental issue involved is
not entirely attributable to the parties adversely affected by the result.
Accordingly, the motion for a new trial should be, and the same is hereby
granted, and the entire record of this case shall be remanded to the Court
of Industrial Relations, with instruction that it reopen the case, receive all
such evidence as may be relevant, and otherwise proceed in accordance
with the requirements set forth hereinabove. So ordered.
G.R. No. 96681, December 02, 1991
HON. ISIDRO CARIÑO, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF EDUCATION, CULTURE & SPORTS, DR. ERLINDA
LOLARGA, IN HER CAPACITY AS SUPERINTENDENT OF CITY
SCHOOLS OF MANILA, PETITIONERS, VS. THE COMMISSION ON
HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA
IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO,
ELSA REYES AND APOLINARIO ESBER, RESPONDENTS.
DECISION
NARVASA, J.:
The issue raised in the special civil action of certiorari and prohibition at
bar, instituted by the Solicitor General, may be formulated as follows:
where the relief sought from the Commission on Human Rights by a party
in a case consists of the review and reversal or modification of a decision
or order issued by a court of justice or government agency or official
exercising quasi-judicial functions, may the Commission take cognizance
of the case and grant that relief? Stated otherwise, where a particular
subject-matter is placed by law within the jurisdiction of a court or other
government agency or official for purposes of trial and adjudgment, may
the Commission on Human Rights take cognizance of the same subject-
matter for the same purposes of hearing and adjudication?
The facts narrated in the petition are not denied by the respondents and
are hence taken as substantially correct for purposes of ruling on the legal
questions posed in the present action. These facts,[1] together with others
involved in related cases recently resolved by this Court,[2] or otherwise
undisputed on the record, are hereunder set forth.
1. On September 17, 1990, a Monday and a class day, some 800 public
school teachers, among them members of the Manila Public School
Teachers Association (MPSTA) and Alliance of Concerned Teachers
(ACT) undertook what they described as "mass concerted actions" to
"dramatize and highlight" their plight resulting from the alleged failure of
the public authorities to act upon grievances that had time and again been
brought to the latter's attention. According to them they had decided to
undertake said "mass concerted actions" after the protest rally staged at
the DECS premises on September 14, 1990 without disrupting classes as
a last call for the government to negotiate the granting of demands had
elicited no response from the Secretary of Education. The "mass actions"
consisted in staying away from their classes, converging at the Liwasang
Bonifacio, gathering in peaceable assemblies, etc. Through their
representatives, the teachers participating in the mass actions were
served with an order of the Secretary of Education to return to work in 24
hours or face dismissal, and a memorandum directing the DECS officials
concerned to initiate dismissal proceedings against those who did not
comply and to hire their replacements. Those directives notwithstanding,
the mass actions continued into the week, with more teachers joining in
the days that followed.[3]
Among those who took part in the "concerted mass actions" were the
eight (8) private respondents herein, teachers at the Ramon Magsaysay
High School, Manila, who had agreed to support the non-political
demands of the MPSTA.[4]
2. "For failure to heed the return-to-work order, the CHR complainants
(private respondents) were administratively charged on the basis of the
principal's report and given five (5) days to answer the charges. They
were also preventively suspended for ninety (90) days 'pursuant to
Section 41 of P.D. 807' and temporarily replaced (unmarked CHR
Exhibits, Annexes F, G, H). An investigation committee was
consequently formed to hear the charges in accordance with P.D. 807."[5]
3. In the administrative case docketed as Case No. DECS 90-082 in
which CHR complainants Graciano Budoy, Jr., Julieta Babaran, Luz del
Castillo, Apolinario Esber were, among others, named respondents,[6] the
latter filed separate answers, opted for a formal investigation, and also
moved "for suspension of the administrative proceedings pending
resolution by ** (the Supreme) Court of their application for issuance of an
injunctive writ/temporary restraining order." But when their motion for
suspension was denied by Order dated November 8, 1990 of the
Investigating Committee, which later also denied their motion for
reconsideration orally made at the hearing of November 14, 1990, "the
respondents led by their counsel staged a walkout signifying their intent to
boycott the entire proceedings."[7] The case eventually resulted in a
Decision of Secretary Cariño dated December 17, 1990, rendered after
evaluation of the evidence as well as the answers, affidavits and
documents submitted by the respondents, decreeing dismissal from the
service of Apolinario Esber and the suspension for nine (9) months of
Babaran, Budoy and del Castillo.[8]
4. In the meantime, the "MPSTA filed a petition for certiorari before the
Regional Trial Court of Manila against petitioner (Cariño), which was
dismissed (unmarked CHR Exhibit, Annex I). Later, the MPSTA went to
the Supreme Court (on certiorari, in an attempt to nullify said dismissal,
grounded on the) alleged violation of the striking teachers' right to due
process and peaceable assembly docketed as G.R. No. 95445, supra.
The ACT also filed a similar petition before the Supreme Court **
docketed as G.R. No. 95590."[9] Both petitions in this Court were filed in
behalf of the teacher associations, a few named individuals, and "other
teacher-members so numerous similarly situated" o r "other similarly
situated public school teachers too numerous to be impleaded."
5. In the meantime, too, the respondent teachers submitted sworn
statements dated September 27, 1990 to the Commission on Human
Rights to complain that while they were participating in peaceful mass
actions, they suddenly learned of their replacement as teachers, allegedly
without notice and consequently for reasons completely unknown to them.
[10]
6. Their Complaints -- and those of other teachers also "ordered
suspended by the ** (DECS)," all numbering forty-two (42) -- were
docketed as "Striking Teachers CHR Case No. 90-775." In connection
therewith the Commission scheduled a "dialogue" on October 11, 1990,
and sent a subpoena to Secretary Cariño requiring his attendance
therein.[11]
On the day of the "dialogue," although it said that it was "not certain
whether he (Sec. Cariño) received the subpoena which was served at his
office, ** (the) Commission, with the Chairman presiding, and
Commissioners Hesiquio R. Mallillin and Narciso C. Monteiro, proceeded
to hear the case;" it heard the complainants' counsel (a) explain that his
clients had been "denied due process and suspended without formal
notice, and unjustly, since they did not join the mass leave," and (b)
expatiate on the grievances which were "the cause of the mass leave of
MPSTA teachers, (and) with which causes they (CHR complainants)
sympathize."[12] The Commission thereafter issued an Order [13] reciting
these facts and making the following disposition:
"To be properly apprised of the real facts of the case and be accordingly
guided in its investigation and resolution of the matter, considering that
these forty two teachers are now suspended and deprived of their wages,
which they need very badly, Secretary Isidro Cariño, of the Department of
Education, Culture and Sports, Dr. Erlinda Lolarga, school superintendent
of Manila and the Principal of Ramon Magsaysay High School, Manila,
are hereby enjoined to appear and enlighten the Commission en banc on
October 19, 1990 at 11:00 A.M. and to bring with them any and all
documents relevant to the allegations aforestated herein to assist the
Commission in this matter. Otherwise, the Commission will resolve the
complaint on the basis of complainants' evidence.
* * * ."
7. Through the Office of the Solicitor General, Secretary Cariño sought
and was granted leave to file a motion to dismiss the case. His motion to
dismiss was submitted on November 14, 1990 alleging as grounds
therefor, "that the complaint states no cause of action and that the CHR
has no jurisdiction over the case."[14]
8. Pending determination by the Commission of the motion to dismiss,
judgments affecting the "striking teachers" were promulgated in two (2)
cases, as aforestated, viz.:
a) The Decision dated December 17, 1990 of Education Secretary Cariño
in Case No. DECS 90-082, decreeing dismissal from the service of
Apolinario Esber and the suspension for nine (9) months of Babaran,
Budoy and del Castillo;[15] and
b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos.
95445 and 95590 dismissing the petitions "without prejudice to any
appeals, if still timely, that the individual petitioners may take to the Civil
Service Commission on the matters complained of," [16] and inter alia
"ruling that it was prima facie lawful for petitioner Cariño to issue return-to-
work orders, file administrative charges against recalcitrants, preventively
suspend them, and issue decision on those charges."[17]
9. In an Order dated December 28, 1990, respondent Commission
denied Sec. Cariño motion to dismiss and required him and
Superintendent Lolarga "to submit their counter-affidavits within ten (10)
days ** (after which) the Commission shall proceed to hear and resolve
the case on the merits with or without respondents counter affidavit." [18] It
held that the "striking teachers" "were denied due process of law; * * they
should not have been replaced without a chance to reply to the
administrative charges;" there had been a violation of their civil and
political rights which the Commission was empowered to investigate; and
while expressing its "utmost respect to the Supreme Court ** the facts
before ** (it) are different from those in the case decided by the Supreme
Court" (the reference being ummistakably to this Court's joint Resolution
of August, 6, 1991 in G.R. Nos. 95445 and 95590, supra).
It is to invalidate and set aside this Order of December 28, 1990 that the
Solicitor General, in behalf of petitioner Cariño, has commenced the
present action of certiorari and prohibition.
The Commission on Human Rights has made clear its position that it
does not feel bound by this Court's joint Resolution in G.R. Nos. 95445
and 95590, supra. It has also made plain its intention "to hear and
resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the
merits." It intends, in other words, to try and decide o r hear and
determine, i.e., exercise jurisdiction over the following general issues:
1) whether or not the striking teachers were denied due process, and
just cause exists for the imposition of administrative disciplinary sanctions
on them by their superiors; and
2) whether or not the grievances which were "the cause of the mass
leave of MPSTA teachers, (and) with which causes they (CHR
complainants) sympathize," justify their mass action or strike.
The Commission evidently intends to itself adjudicate, that is to say,
determine with character of finality and definiteness, the same issues
which have been passed upon and decided by the Secretary of
Education, Culture & Sports, subject to appeal to the Civil Service
Commission, this Court having in fact, as aforementioned, declared that
the teachers affected may take appeals to the Civil Service Commission
on said matters, if still timely.
The threshold question is whether or not the Commission on Human
Rights has the power under the Constitution to do so; whether or not, like
a court of justice,[19] or even a quasi-judicial agency,[20] it has jurisdiction or
adjudicatory powers over, or the power to try and decide, or hear and
determine, certain specific type of cases, like alleged human rights
violations involving civil or political rights.
The Court declares the Commission on Human Rights to have no such
power; and that it was not meant by the fundamental law to be another
court or quasi-judicial agency in this country, or duplicate much less take
over the functions of the latter.
The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive evidence and
make findings of fact as regards claimed human rights violations involving
civil and political rights. But fact-finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even a quasi-judicial
agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be accompanied by the
authority of applying the law to those factual conclusions to the end that
the controversy may be decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of review as may be
provided by law.[21] This function, to repeat, the Commission does not
have.[22]
The proposition is made clear by the constitutional provisions specifying
the powers of the Commission on Human Rights.
The Commission was created by the 1987 Constitution as an independent
office.[23] Upon its constitution, it succeeded and superseded the
Presidential Committee on Human Rights existing at the time of the
effectivity of the Constitution.[24] Its powers and functions are the following:
[25]
"(1) Investigate, on its own or on complaint by any party, all forms of
human rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human
rights of all persons within the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human
rights and to provide for compensation to victims of violations of human
rights, or their families;
(7) Monitor the Philippine Government's compliance with international
treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or
whose possession of documents or other evidence is necessary or
convenient to determine the truth in any investigation conducted by it or
under its authority;
(9) Request the assistance of any department, bureau, office, or agency
in the performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by
law."
As should at once be observed, only the first of the enumerated powers
and functions bears any resemblance to adjudication or adjudgment. The
Constitution clearly and categorically grants to the Commission the power
t o investigate all forms of human rights violations involving civil and
political rights. It can exercise that power on its own initiative or on
complaint of any person. It may exercise that power pursuant to such
rules of procedure as it may adopt and, in cases of violations of said
rules, cite for contempt in accordance with the Rules of Court. In the
course of any investigation conducted by it or under its authority, it may
grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to
determine the truth. It may also request the assistance of any
department, bureau, office, or agency in the performance of its functions,
in the conduct of its investigation or in extending such remedy as may be
required by its findings.[26]
But it cannot try and decide cases (or hear and determine causes) as
courts of justice, or even quasi-judicial bodies do. To investigate is not to
adjudicate or adjudge. Whether in the popular or the technical sense,
these terms have well understood and quite distinct meanings.
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of “investigate” is "to observe or study closely: inquire into
systematically: "to search or inquire into: * * to subject to an official probe
** : to conduct an official inquiry;"[27] The purpose of investigation, of
course, is to discover, to find out, to learn, obtain information. Nowhere
included or intimated is the notion of settling, deciding or resolving a
controversy involved in the facts inquired into by application of the law to
the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o
follow up step by step by patient inquiry or observation. To trace or track;
to search into; to examine and inquire into with care and accuracy; to find
out by careful inquisition; examination; the taking of evidence; a legal
inquiry;"[28] "to inquire; to make an investigation," "investigation" being in
turn described as "(a)n administrative function, the exercise of which
ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; * * an
inquiry, judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters."[29]
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary
defines the term as "to settle finally (the rights and duties of the parties to
a court case) on the merits of issues raised: ** to pass judgment on:
settle judicially: ** act as judge."[30] And "adjudge" means "to decide or
rule upon as a judge or with judicial or quasi-judicial powers: ** to award
or grant judicially in a case of controversy ** ."[31]
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous with adjudge in its
strictest sense;" and "adjudge" means: "To pass on judicially, to decide,
settle or decree, or to sentence or condemn. ** Implies a judicial
determination of a fact, and the entry of a judgment."[32]
Hence it is that the Commission on Human Rights, having merely
the power "to investigate," cannot and should not "try and resolve on the
merits" (adjudicate) the matters involved in Striking Teachers HRC Case
No. 90-775, as it has announced it means to do; and it cannot do so even
if there be a claim that in the administrative disciplinary proceedings
against the teachers in question, initiated and conducted by the DECS,
their human rights, or civil or political rights had been transgressed. More
particularly, the Commission has no power to "resolve on the merits" the
question of (a) whether or not the mass concerted actions engaged in by
the teachers constitute a strike and are prohibited or otherwise restricted
by law; (b) whether or not the act of carrying on and taking part in those
actions, and the failure of the teachers to discontinue those actions and
return to their classes despite the order to this effect by the Secretary of
Education, constitute infractions of relevant rules and regulations
warranting administrative disciplinary sanctions, or are justified by the
grievances complained of by them; and (c) what were the particular acts
done by each individual teacher and what sanctions, if any, may properly
be imposed for said acts or omissions.
These are matters undoubtedly and clearly within the original
jurisdiction of the Secretary of Education, being within the scope of the
disciplinary powers granted to him under the Civil Service Law, and also,
within the appellate jurisdiction of the Civil Service Commission.
Indeed, the Secretary of Education has, as above narrated, already
taken cognizance of the issues and resolved them,[33] and it appears that
appeals have been seasonably taken by the aggrieved parties to the Civil
Service Commission; and even this Court itself has had occasion to pass
upon said issues.[34]
Now, it is quite obvious that whether or not the conclusions reached
by the Secretary of Education in disciplinary cases are correct and are
adequately based on substantial evidence; whether or not the
proceedings themselves are void or defective in not having accorded the
respondents due process; and whether or not the Secretary of Education
had in truth committed "human rights violations involving civil and political
rights," are matters which may be passed upon and determined through a
motion for reconsideration addressed to the Secretary of Education
himself, and in the event of an adverse verdict, may be reviewed by the
Civil Service Commission and eventually by the Supreme Court.
The Commission on Human Rights simply has no place in this
scheme of things. It has no business intruding into the jurisdiction and
functions of the Education Secretary or the Civil Service Commission. It
has no business going over the same ground traversed by the latter and
making its own judgment on the questions involved. This would accord
success to what may well have been the complaining teachers strategy to
abort, frustrate or negate the judgment of the Education Secretary in the
administrative cases against them which they anticipated would be
adverse to them.
This cannot be done. It will not be permitted to be done.
In any event, the investigation by the Commission on Human Rights
would serve no useful purpose. If its investigation should result in
conclusions contrary to those reached by Secretary Cariño, it would have
no power anyway to reverse the Secretary's conclusions. Reversal
thereof can only by done by the Civil Service Commission and lastly by
this Court. The only thing the Commission can do, if it concludes that
Secretary Cariño was in error, is to refer the matter to the appropriate
Government agency or tribunal for assistance; that would be the Civil
Service Commission.[35] It cannot arrogate unto itself the appellate
jurisdiction of the Civil Service Commission.
WHEREFORE, the petition is granted; the Order of December 29,
1990 is ANNULLED and SET ASIDE, and the respondent Commission on
Human Rights and the Chairman and Members thereof are prohibited "to
hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775)
on the merits."
G.R. No. 100150, January 05, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO,
AND GENEROSO OCAMPO, PETITIONERS, VS. COMMISSION ON
HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES,
RESPONDENTS.
DECISION
VITUG, J.:
The extent of the authority and power of the Commission on Human
Rights ("CHR") is again placed into focus in this petition for prohibition,
with prayer for a restraining order and preliminary injunction. The
petitioners ask us to prohibit public respondent CHR from further hearing
and investigating CHR Case No-90-1580, entitled "Fermo, et al. vs.
Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990,
signed by Carlos Quimpo (one of the petitioners) in his capacity as an
Executive Officer of the Quezon City Integrated Hawkers Management
Council under the Office of the City Mayor, was sent to, and received by,
the private respondents (being the officers and members of the North
EDSA Vendors Association, Incorporated). In said notice, the
respondents were given a grace-period of three (3) days (up to 12 July
1990) within which to vacate the questioned premises of North EDSA. [1]
Prior to their receipt of the demolition notice, the private respondents were
informed by petitioner Quimpo that their stalls should be removed to give
way to the "People's Park."[2] On 12 July 1990, the group, led by their
President Roque Fermo, filed a letter-complaint (Pinag-samang
Sinumpaang Salaysay) with the CHR against the petitioners, asking the
late CHR Chairman Mary Concepcion Bautista for a letter to be
addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the
demolition of the private respondents' stalls, sari-sari stores, and
carinderia along North EDSA. The complaint was docketed as CHR Case
No. 90-1580.[3] On 23 July 1990, the CHR issued an Order, directing the
petitioners "to desist from demolishing the stalls and shanties at North
EDSA pending resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the CHR.[4]
On the basis of the sworn statements submitted by the private
respondents on 31 July 1990, as well as CHR's own ocular inspection,
and convinced that on 28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-sari stores and carinderia,[5]
the CHR, in its resolution of 1 August 1990, ordered the disbursement of
financial assistance of not more than P200,000.00 in favor of the private
respondents to purchase light housing materials and food under the
Commission's supervision and again directed the petitioners to "desist
from further demolition, with the warning that violation of said order would
lead to a citation for contempt and arrest."[6]
A motion to dismiss,[7] dated 10 September 1990, questioned CHR's
jurisdiction. The motion also averred, among other things, that:
"1. this case came about due to the alleged violation by the (petitioners) of
the Inter-Agency Memorandum of Agreement whereby Metro-Manila
Mayors agreed on a moratorium in the demolition of the dwellings of poor
dwellers in Metro-Manila;
"* * *
"3. * * *, a perusal of the said Agreement (revealed) that the moratorium
referred to therein refers to moratorium in the demolition of the structures
of poor dwellers;
"4. that the complainants in this case (were) not poor dwellers but
independent business entrepreneurs even this Honorable Office admitted
in its resolution of 1 August 1990 that the complainants are indeed,
vendors;
"5. that the complainant (were) occupying government land, particularly
the sidewalk of EDSA corner North Avenue, Quezon City; * * * and
"6. that the City Mayor of Quezon City (had) the sole and exclusive
discretion and authority whether or not a certain business establishment
(should) be allowed to operate within the jurisdiction of Quezon City, to
revoke or cancel a permit, if already issued, upon grounds clearly
specified by law and ordinance."[8]
During the 12 September 1990 hearing, the petitioners moved for
postponement, arguing that the motion to dismiss set for 21 September
1990 had yet to be resolved. The petitioners likewise manifested that they
would bring the case to the courts.
On 18 September 1990, a supplemental motion to dismiss was filed by
the petitioners, stating that the Commission's authority should be
understood as being confined only to the investigation of violations of civil
and political rights, and that "the rights allegedly violated in this case
(were) not civil and political rights, (but) their privilege to engage in
business."[9]

On 21 September 1990, the motion to dismiss was heard and submitted
for resolution, along with the contempt charge that had meantime been
filed by the private respondents, albeit vigorously objected to by the
petitioners (on the ground that the motion to dismiss was still then
unresolved).[10]
In an Order,[11] dated 25 September 1990, the CHR cited the petitioners in
contempt for carrying out the demolition of the stalls, sari-sari stores and
carinderia despite the "order to desist," and it imposed a fine of P500.00
on each of them.
On 1 March 1991,[12] the CHR issued an Order, denying petitioners'
motion to dismiss and supplemental motion to dismiss, in this wise:
"Clearly, the Commission on Human Rights under its constitutional
mandate had jurisdiction over the complaint filed by the squatters-vendors
who complained of the gross violations of their human and constitutional
rights. The motion to dismiss should be and is hereby DENIED for lack of
merit."[13]
The CHR opined that "it was not the intention of the (Constitutional)
Commission to create only a paper tiger limited only to investigating civil
and political rights, but it (should) be (considered) a quasi-judicial body
with the power to provide appropriate legal measures for the protection of
human rights of all persons within the Philippines * * *." It added:
"The right to earn a living is a right essential to one's right to development,
to life and to dignity. All these brazenly and violently ignored and trampled
upon by respondents with little regard at the same time for the basic rights
of women and children, and their health, safety and welfare. Their actions
have psychologically scarred and traumatized the children, who were
witness and exposed to such a violent demonstration of Man's inhumanity
to man."
In an Order,[14] dated 25 April 1991, petitioners' motion for reconsideration
was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution [15] of 25 June 1991; it
was subsequently reinstated, however, in our resolution [16] of 18 June
1991, in which we also issued a temporary restraining order, directing the
CHR to "CEASE and DESIST from further hearing CHR No. 90-1580."[17]
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the
private respondents whose stalls were demolished by the petitioners at
the instance and authority given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors
affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was
excused from filing his comment for public respondent CHR. The latter
thus filed its own comment, [18] through Hon. Samuel Soriano, one of its
Commissioners. The Court also resolved to dispense with the comment of
private respondent Roque Fermo, who had since failed to comply with the
resolution, dated 18 July 1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987 Constitution.
[19] It was formally constituted by then President Corazon Aquino via
Executive Order No. 163,[20] issued on 5 May 1987, in the exercise of her
legislative power at the time. It succeeded, but so superseded as well, the
Presidential Committee on Human Rights.[21]
The powers and functions[22] of the Commission are defined by the 1987
Constitution, thus: to -
"(1) Investigate, on its own or on complaint by any party, all forms of
human rights violations involving civil and political rights;
"(2) Adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court;
"(3) Provide appropriate legal measures for the protection of human rights
of all persons within the Philippines, as well as Filipinos residing abroad,
and provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection;
"(4) Exercise visitorial powers over jails, prisons, or detention facilities;
"(5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human rights;
"(6) Recommend to the Congress effective measures to promote human
rights and to provide for compensation to victims of violations of human
rights, or their families;
"(7) Monitor the Philippine Government's compliance with international
treaty obligations on human rights;
"(8) Grant immunity from prosecution to any person whose testimony or
whose possession of documents or other evidence is necessary or
convenient to determine the truth in any investigation conducted by it or
under its authority;
"(9) Request the assistance of any department, bureau, office, or agency
in the performance of its functions;
"(10) Appoint its officers and employees in accordance with law; and
"(11) Perform such other duties and functions as may be provided by
law."
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the
CHR theorizes that the intention of the members of the Constitutional
Commission is to make CHR a quasi-judicial body.[23] This view, however,
has not heretofore been shared by this Court. In Cariño v. Commission on
Human Rights,[24] the Court, through then Associate Justice, now Chief
Justice Andres Narvasa, has observed that it is "only the first of the
enumerated powers and functions that bears any resemblance to
adjudication or adjudgment," but that resemblance can in no way be
synonymous to the adjudicatory power itself. The Court explained:
"* * * (T)he Commission on Human Rights * * * was not meant by the
fundamental law to be another court or quasi-judicial agency in this
country, or duplicate much less take over the functions of the latter.
"The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive evidence and
make findings of fact as regards claimed human rights violations involving
civil and political rights. But fact finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even a quasi-judicial
agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be accompanied by the
authority of applying the law to those factual conclusions to the end that
the controversy may be decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of review as may be
provided by law. This function, to repeat, the Commission does not have."
After thus laying down at the outset the above rule, we now proceed to
the other kernel of this controversy and, it is, to determine the extent of
CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a
term that any attempt to define it, albeit not a few have tried, could at best
be described as inconclusive. Let us observe. In a symposium on human
rights in the Philippines, sponsored by the University of the Philippines in
1977, one of the questions that has been propounded is "(w)hat do you
understand by 'human rights'?" The participants, representing different
sectors of the society, have given the following varied answers:
"Human rights are the basic rights which inhere in man by virtue of his
humanity. They are the same in all parts of the world, whether the
Philippines or England, Kenya or the Soviet Union, the United States or
Japan, Kenya or Indonesia * * *.
"Human rights include civil rights, such as the right to life, liberty, and
property; freedom of speech, of the press, of religion, academic freedom,
and the rights of the accused to due process of law; political rights, such
as the right to elect public officials, to be elected to public office, and to
form political associations and engage in politics; and social rights, such
as the right to an education, employment, and social services."[25]
"Human rights are the entitlement that inhere in the individual person from
the sheer fact of his humanity. * * * Because they are inherent, human
rights are not granted by the State but can only be recognized and
protected by it."[26]
"(Human rights include all) the civil, political, economic, social, and
cultural rights defined in the Universal Declaration of Human Rights."[27]
"Human rights are rights that pertain to man simply because he is human.
They are part of his natural birth right, innate and inalienable."[28]
The Universal Declaration of Human Rights, as well as, or more
specifically, the International Covenant on Economic, Social and Cultural
Rights and International Covenant on Civil and Political Rights, suggests
that the scope of human rights can be understood to include those that
relate to an individual's social, economic, cultural, political and civil
relations. It thus seems to closely identify the term to the universally
accepted traits and attributes of an individual, along with what is generally
considered to be his inherent and inalienable rights, encompassing
almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of
our 1986 Constitutional Commission in adopting the specific provisions on
human rights and in creating an independent commission to safeguard
these rights? It may of value to look back at the country's experience
under the martial law regime which may have, in fact, impelled the
inclusions of those provisions in our fundamental law. Many voices have
been heard. Among those voices, aptly representative perhaps of the
sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a
respected jurist and an advocate of civil liberties, who, in his paper,
entitled "Present State of Human Rights in the Philippines,"[29] observes:
"But while the Constitution of 1935 and that of 1973 enshrined in their Bill
of Rights most of the human rights expressed in the International
Covenant, these rights became unavailable upon the proclamation of
Martial Law on 21 September 1972. Arbitrary action then became the
rule. Individuals by the thousands became subject to arrest upon
suspicion, and were detained and held for indefinite periods, sometimes
for years, without charges, until ordered released by the Commander-in-
Chief or this representative. The right to petition for the redress of
grievances became useless, since group actions were forbidden. So were
strikes. Press and other mass media were subjected to censorship and
short term licensing. Martial law brought with it the suspension of the writ
of habeas corpus, and judges lost independence and security of tenure,
except members of the Supreme Court. They were required to submit
letters of resignation and were dismissed upon the acceptance thereof.
Torture to extort confessions were practiced as declared by international
bodies like Amnesty International and the International Commission of
Jurists."
Converging our attention to the records of the Constitutional Commission,
we can see the following discussions during its 26 August 1986
deliberations:
"MR. GARCIA. * * *, the primacy of its (CHR) task must be made clear in
view of the importance of human rights and also because civil and
political rights have been determined by many international covenants
and human rights legislations in the Philippines, as well as the
Constitution, specifically the Bill of Rights and subsequent legislation.
Otherwise, if we cover such a wide territory area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity would also
be curtailed.
"So, it is important to delineate the parameters of its task so that the
commission can be most effective.
"MR. BENGZON. That is precisely my difficulty because civil and political
rights are very broad. The Article on the Bill of Rights covers civil and
political rights. Every single right of an individual involves his civil right or
his political right. So, where do we draw the line?
"MR. GARCIA. Actually, these civil and political rights have been made
clear in the language of human rights advocates, as well as in the
Universal Declaration of Human Rights which addresses a number of
articles on the right to life, the right against torture, the right to fair and
public hearing, and so on. These are very specific rights that are
considered enshrined in many international documents and legal
instruments as constituting civil and political rights, and these are
precisely what we want to defend here.
"MR. BENGZON. So, would the commissioner say civil and political rights
as defined in the Universal Declaration of Human Rights?
"MR. GARCIA. Yes, and as I have mentioned, the International Covenant
of Civil and Political Rights distinguished this right against torture.
"MR. BENGZON. So as to distinguish this from the other rights that we
have?
"MR. GARCIA. Yes, because the other rights will encompass social and
economic rights, and there are other violations of rights of citizens which
can be addressed to the proper courts and authorities.
"* * *
"MR. BENGZON. So, we will authorize the commission to define its
functions, and, therefore, in doing that the commission will be authorized
to take under its wings cases which perhaps heretofore or at this moment
are under the jurisdiction of the ordinary investigative and prosecutorial
agencies of the government. Am I correct?
"MR. GARCIA. No. We have already mentioned earlier that we would like
to define the specific parameters which cover civil and political rights as
covered by the international standards governing the behavior of
governments regarding the particular political and civil rights of citizens,
especially of political detainees or prisoners. This particular aspect we
have experienced during martial law which we would now like to
safeguard.
"MR. BENGZON. Then, I go back to that question that I had. Therefore,
what we are really trying to say is, perhaps, at the proper time we could
specify all those rights stated in the Universal Declaration of Human
Rights and defined as human rights. Those are the rights that we envision
here?
"MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of
our Constitution. They are integral parts of that.
"MR. BENGZON. Therefore, is the Gentleman saying that all the rights
under the Bill of Rights covered by human rights?
"MR. GARCIA. No, only those that pertain to civil and political rights.
"* * *
"MR. RAMA. In connection with the discussion on the scope of human
rights, I would like to state that in the past regime, everytime we invoke
the violation of human rights, the Marcos regime came out with the
defense that, as a matter of fact, they had defended the rights of people
to decent living, food, decent housing and a life consistent with human
dignity.
"So, I think we should really limit the definition of human rights to political
rights. Is that the sense of the committee, so as not to confuse the issue?
"MR. SARMIENTO. Yes, Madam President.
"MR. GARCIA. I would like to continue and respond also to repeated
points raised by the previous speaker.
"There are actually six areas where this Commission on Human Rights
could act effectively: 1) protection of rights of political detainees; 2)
treatment of prisoners and the prevention of tortures; 3) fair and public
trials; 4) cases of disappearances; 5) salvagings and hamletting; and 6)
other crimes committed against the religious.
"***
"The PRESIDENT. Commissioner Guingona is recognized.
"MR. GUINGONA. Thank you Madam President.
"I would like to start by saying that I agree with Commissioner Garcia that
we should, in order to make the proposed Commission more effective,
delimit as much as possible, without prejudice to future expansion. The
coverage of the concept and jurisdictional area of the term 'human rights.
I was actually disturbed this morning when the reference was made
without qualification to the rights embodied in the universal Declaration of
Human Rights, although later on, this was qualified to refer to civil and
political rights contained therein.
"If I remember correctly, Madam President, Commissioner Garcia, after
mentioning the Universal Declaration of Human Rights of 1948,
mentioned or linked the concept of human right with other human rights
specified in other convention which I do not remember. Am I correct?
"MR. GARCIA. Is Commissioner Guingona referring to the Declaration of
Torture of 1985?
"MR. GUINGONA. I do not know, but the commissioner mentioned
another.
"MR. GARCIA. Madam President, the other one is the International
Convention on Civil and Political Rights of which we are signatory.
"MR. GUINGONA. I see. The only problem is that, although I have a copy
of the Universal Declaration of Human Rights here, I do not have a copy
of the other covenant mentioned. It is quite possible that there are rights
specified in that other convention which may not be specified here. I was
wondering whether it would be wise to link our concept of human rights to
general terms like ‘convention,’ rather than specify the rights contained in
the convention.
"As far as the Universal Declaration of Human Rights is concerned, the
Committee, before the period of amendments, could specify to us which
of these articles in the Declaration will fall within the concept of civil and
political rights, not for the purpose of including these in the proposed
constitutional article, but to give the sense of the Commission as to what
human rights would be included, without prejudice to expansion later on, if
the need arises. For example, there was no definite reply to the question
of Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?
"MR. GARCIA. Madam President, I have to repeat the various specific
civil and political rights that we felt must be envisioned initially by this
provision--freedom from political detention and arrest prevention of
torture, right to fair and public trials, as well as crimes involving
disappearance salvagings, hamlettings and collective violations. So, it is
limited to politically related crimes precisely to protect the civil and political
rights of a specific group of individuals, and therefore, we are not opening
it up to all of the definite areas.
"MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen
is no longer linking his concept or the concept of the Committee on
Human Rights with the so-called civil or political rights as contained in the
Universal Declaration of Human rights.
"MR. GARCIA. When I mentioned earlier the Universal Declaration of
Human Rights, I was referring to an international instrument.
"MR. GUINGONA. I know.
"MR. GARCIA. But it does not mean that we will refer to each and every
specific article therein, but only to those that pertain to the civil and
politically related, as we understand it in this Commission on Human
Rights.
"MR. GUINGONA. Madam President, I am not even clear as to the
distinction between civil and social rights.
"MR. GARCIA. There are two international covenants: the International
Covenant and Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. The second covenant contains all
the different rights - the rights of labor to organize, the right to education,
housing, shelter, et cetera.
"MR. GUINGONA. So we are just limiting at the moment the sense of the
committee to those that the Gentlemen has specified.
"MR. GARCIA. Yes, to civil and political rights.
"MR. GUINGONA. Thank you.
"* * *
"SR. TAN. Madam President, from the standpoint of the victims of human
rights, I cannot stress more on how much we need a Commission on
Human Rights. * * *
"* * * human rights victims are usually penniless. They cannot pay and
very few lawyers will accept clients who do not pay. And so, they are the
ones more abused and oppressed. Another reason is, the cases involved
are very delicate - torture, salvaging, picking up without any warrant of
arrest, massacre - and the persons who are allegedly guilty are people in
power like politicians, men in the military and big shots. Therefore, this
Human Rights Commission must be independent.
"I would like very much to emphasize how much we need this
commission, especially for the little Filipino, the little individual who needs
this kind of help and cannot get it. And I think we should concentrate only
on civil and political violations because if we open this to land, housing
and health, we will have no place to go again and we will not receive any
response. * * *"[30] (underscoring supplied.)
The final outcome, now written as Section 18, Article XIII, of the 1987
Constitution, is a provision empowering the Commission on Human
Rights to "investigate, on its own or on complaint by any party, all forms of
human rights violations involving civil and political rights" (Sec. 1).
The term “civil rights,”[31] has been defined as referring -
"(to) those (rights) that belong to every citizen of the state or country, or,
in a wider sense, to all its inhabitants, and are not connected with the
organization or administration of government. They include the rights of
property, marriage, equal protection of the laws, freedom of contract, etc.
Or, as otherwise defined civil rights are rights appertaining to a person by
virtue of his citizenship in a state or community. Such term may also refer,
in its general sense, to rights capable of being enforced or redressed in a
civil action."
Also quite often mentioned are the guarantees against involuntary
servitude, religious persecution, unreasonable searches and seizures,
and imprisonment for debt.[32]
Political rights,[33] on the other hand, are said to refer to the right to
participate, directly or indirectly, in the establishment or administration of
government, the right of suffrage, the right to hold public office, the right of
petition and, in general, the rights appurtenant to citizenship vis-a-vis the
management of government.[34]
Recalling the deliberations of the Constitutional Commission,
aforequoted, it is readily apparent that the delegates envisioned a
Commission on Human Rights that would focus its attention to the more
severe cases of human rights violations. Delegate Garcia, for instance,
mentioned such areas as the "(1) protection of rights of political
detainees, (2) treatment of prisoners and the prevention of tortures, (3)
fair and public trials, (4) cases of disappearances, (5) salvagings and
hamletting, and (6) other crimes committed against the religious." While
the enumeration has not likely been meant to have any preclusive effect,
more than just expressing a statement of priority, it is, nonetheless,
significant for the tone it has set. In any event, the delegates did not
apparently take comfort in peremptorily making a conclusive delineation
of the CHR's scope of investigatorial jurisdiction. They have thus seen it fit
to resolve, instead, that "Congress may provide for other cases of
violations of human rights that should fall within the authority of the
Commission, taking into account its recommendation."[35]
In the particular case at hand, there is no cavil that what are sought to be
demolished are the stalls, sari-sari stores and carinderia, as well as
temporary shanties, erected by private respondents on a land which is
planned to be developed into a "People's Park." More than that, the land
adjoins the North EDSA of Quezon City which, this Court can take judicial
notice of, is a busy national highway. The consequent danger to life and
limb is not thus to be likewise simply ignored. It is indeed paradoxical that
a right which is claimed to have been violated is one that cannot, in the
first place, even be invoked, if it is not, in fact, extant. Be that as it may,
looking at the standards hereinabove discoursed vis-a-vis t h e
circumstances obtaining in this instance, we are not prepared to conclude
that the order for the demolition of the stalls, sari-sari stores and
carinderia of the private respondents can fall within the compartment of
"human rights violations involving civil and political rights" intended by the
Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt
its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court." Accordingly, the
CHR acted within its authority in providing in its revised rules, its power
"to cite or hold any person in direct or indirect contempt, and to impose
the appropriate penalties in accordance with the procedure and sanctions
provided for in the Rules of Court." That power to cite for contempt,
however, should be understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt could
be exercised against persons who refuse to cooperate with the said body,
or who unduly withhold relevant information, or who decline to honor
summons, and the like, in pursuing its investigative work. The "order to
desist" (a semantic interplay for a restraining order) in the instance before
us, however, is not investigatorial in character but prescinds from an
adjudicative power that it does not possess. In Export Processing Zone
Authority vs. Commission on Human Rights,[36] the Court, speaking
through Madame Justice Carolina Griño-Aquino, explained:
"The constitutional provision directing the CHR to 'provide for preventive
measures and legal aid services to the underprivileged whose human
rights have been violated or need protection' may not be construed to
confer jurisdiction on the Commission to issue a restraining order or writ
of injunction for, it that were the intention, the Constitution would have
expressly said so. ‘Jurisdiction is conferred only by the Constitution or by
law’. It is never derived by implication."
"Evidently, the ‘preventive measures and legal aid services’ mentioned in
the Constitution refer to extrajudicial and judicial remedies (including a
writ of preliminary injunction) which the CHR may seek from the proper
courts on behalf of the victims of human rights violations. Not being a
court of justice, the CHR itself has no jurisdiction to issue the writ, for a
writ of preliminary injunction may only be issued ‘by the judge of any court
in which the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. * * *. A writ of preliminary
injunction is an ancillary remedy. It is available only in a pending principal
action, for the preservation or protection of the rights and interests of a
party thereto, and for no other purpose." (footnotes omitted)
The Commission does have legal standing to indorse, for appropriate
action, its findings and recommendations to any appropriate agency of
government.[37]
The challenge on the CHR's disbursement of the amount of P200,000.00
by way of financial aid to the vendors affected by the demolition is not an
appropriate issue in the instant petition. Not only is there lack of locus
standi on the part of the petitioners to question the disbursement but,
more importantly, the matter lies with the appropriate administrative
agencies concerned to initially consider.
The public respondent explains that this petition for prohibition filed by the
petitioners has become moot and academic since the case before it (CHR
Case No. 90-1580) has already been fully heard, and that the matter is
merely awaiting final resolution. It is true that prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended
to provide a remedy for an act already accomplished. [38] Here, however,
said Commission admittedly has yet to promulgate its resolution in CHR
Case No. 90-1580. The instant petition has been intended, among other
things, to also prevent CHR from precisely doing that.[39]

WHEREFORE, the writ prayed for in this petition is GRANTED. The

Commission on Human Rights is hereby prohibited from further
proceeding with CHR Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary restraining order heretofore
issued by this Court is made permanent. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero,

Nocon, Bellosillo, Melo, Quiason, and Puno, JJ., concur.
Padilla, J., dissenting opinion.
EN BANC
G.R. No. 79974, December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA,
PETITIONERS, VS. SALVADOR MISON, IN HIS CAPACITY AS
COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO
CA RA GU E, I N H IS CA PA C ITY A S SE CR ET AR Y O F T HE
DEPARTMENT OF BUDGET, RESPONDENTS, COMMISSION ON
APPOINTMENTS, INTERVENOR.
DECISION
PADILLA, J.:
Once more the Court is called upon to delineate constitutional
boundaries. In this petition for prohibition, the petitioners, who are
taxpayers, lawyers, members of the Integrated Bar of the Philippines and
professors of Constitutional Law, seek to enjoin the respondent Salvador
Mison from performing the functions of the Office of Commissioner of the
Bureau of Customs and the respondent Guillermo Carague, as Secretary
of the Department of Budget, from effecting disbursements in payment of
Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is
unconstitutional by reason of its not having been confirmed by the
Commission on Appointments. The respondents, on the other hand,
maintain the constitutionality of respondent Mison's appointment without
the confirmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability
in the public service, the Court resolved to give due course to the petition
and decide, setting aside the finer procedural questions of whether
prohibition is the proper remedy to test respondent Mison's right to the
Office of Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the
Commission on Appointments to intervene and file a petition in
intervention. Comment was required of respondents on said petition.
The comment was filed, followed by intervenor's reply thereto. The
parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves
a conflict between two (2) great departments of government, the
Executive and Legislative Departments. It also occurs early in the life of
the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively
clear provisions in the Constitution. In cases like this, we follow what the
Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad
Santos stated in Gold Creek Mining Corp., vs. Rodriguez[1], that:
"The fundamental principle of constitutional construction is to give effect
to the intent of the framers of the organic law and of the people adopting
it. The intention to which force is to be given is that which is embodied
and expressed in the constitutional provisions themselves".
The Court will thus construe the applicable constitutional provisions, not in
accordance with how the executive or the legislative department may
want them construed, but in accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
"The President shall nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint
all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by
law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads
of the departments, agencies, commissions or boards.
"The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress".
It is readily apparent that under the provisions of the 1987
Constitution, just quoted, there are four (4) groups of officers whom the
President shall appoint. These four (4) groups, to which we will hereafter
refer from time to time, are:
First, the heads of the excutive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of
colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution[2];
Second, all other officers of the Government whose appointments are not
otherwise provided for by law[3];
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank[4] whose appointments the Congress may by
law vest in the President alone.
The first group of officers is clearly appointed with the consent of the
Commission on Appointments. Appointments of such officers are initiated
by nomination and, if the nomination is confirmed by the Commission on
Appointments, the President appoints.[5]
The second, third and fourth groups of officers are the present bone
of contention. Should they be appointed by the President with or without
the consent (confirmation) of the Commission on Appointments? By
following the accepted rule in constitutional and statutory construction that
an express enumeration of subjects excludes others not enumerated, it
would follow that only those appointments to positions expressly stated in
the first group require the consent (confirmation) of the Commission on
Appointments. But we need not rely solely on this basic rule of
constitutional construction. We can refer to historical background as well
as to the records of the 1986 Constitutional Commission to determine,
with more accuracy, if not precision, the intention of the framers of the
1987 Constitution and the people adopting it, on whether the
appointments by the President, under the second, third and fourth groups,
require the consent (confirmation) of the Commission on Appointments.
Again, in this task, the following advice of Mr. Chief Justice J. Abad
Santos in Gold Creek is apropos:
"In deciding this point, it should be borne in mind that a constitutional
provision must be presumed to have been framed and adopted in the light
and understanding of prior and existing laws and with reference to them.
"Courts are bound to presume that the people adopting a constitution are
familiar with the previous and existing laws upon the subjects to which its
provisions relate, and upon which they express their judgment and
opinion in its adoption." (Barry vs. Truax, 13 N. D., 131; 99 N. W., 769; 65
L. R. A., 762.)[6]".
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution,
it is provided that -
x x x x x other officers, i.e., those in the second and third groups as well as those
"(3) The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the executive
departments and bureaus, officers of the army from the rank of colonel, of
the Navy and Air Forces from the rank of captain or commander, and all
other officers of the Government whose appointments are not herein
otherwise provided for, and those whom he may be authorized by law to
appoint; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of
departments.
"(4) The President shall have the power to make appointments during
the recess of the Congress, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
x x x x x departments[7]" (Emphasis supplied).
"(7) x x x, and with the consent of the Commission on Appointments,
shall appoint ambassadors, other public ministers and consuls x x x."
Upon the other hand, the 1973 Constitution provides that -
"Section 10. The President shall appoint the heads of bureaus and
offices, the officers of the Armed Forces of the Philippines from the rank
of Brigadier General or Commodore, and all other officers of the
government whose appointments are not herein otherwise provided for,
and those whom he may be authorized by law to appoint. However, the
Batasang Pambansa may by law vest in the Prime Minister, members of
the Cabinet, the Executive Committee, Courts, Heads of Agencies,
Commissions, and Boards the power to appoint inferior officers in their
respective offices".
Thus, in the 1935 Constitution, almost all presidential appointments
required the consent (confirmation) of the Commission on Appointments.
It is now a sad part of our political history that the power of confirmation
by the Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of "horse-trading"
and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian
pattern in which it was molded and re-molded by successive
amendments, placed the absolute power of appointment in the President
with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the
other, in the 1973 Constitution, it is not difficult for the Court to state that
the framers of the 1987 Constitution and the people adopting it, struck a
"middle ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of appointments and
leaving to the President, without such confirmation, the appointment of
in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this
conclusion. The original text of Section 16, Article VII, as proposed by the
Committee on the Executive of the 1986 Constitutional Commission, read
as follows:
"Section 16. The president shall nominate and, with the consent of a
Commission on Appointment, shall appoint the heads of the executive
departments and bureaus, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval
captain and all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized
by law to appoint. The Congress may by law vest the appointment of
inferior officers in the President alone, in the courts, or in the heads of
The above text is almost a verbatim copy of its counterpart provision in
the 1935 Constitution. When the framers discussed on the floor of the
Commission the proposed text of Section 16, Article VII, a feeling was
manifestly expressed to make the power of the Commission on
Appointments over presidential appointments more limited than that held
by the Commission in the 1935 Constitution. Thus - the office.
"Mr. Rama: x x x May I ask that Commissioner Monsod be MR. FOZ: Yes, but the regional directors are under the
recognized. supervision of the staff bureau directors.
The President: We will call Commissioner Davide later. xxx xxx xxx
Mr. Monsod: With the Chair's indulgence, I just want to take a few MR. MAAMBONG: May I direct a question to Commissioner Foz? The
minutes of our time to lay the basis for some of the amendments that I Commissioner proposed an amendment to delete 'and bureaus' on
would like to propose to the Committee this morning. Section 16. Who will then appoint the bureau directors if it is not the
xxx xxx xxx President?
On Section 16, I would like to suggest that the power of the Commission MR. FOZ: It is still the President who will appoint them but their
on Appointments be limited to the department heads, ambassadors, appointment shall no longer be subject to confirmation by the Commission
generals and so on but not to the levels of bureau heads and colonels. on Appointments.
xxx xxx x x x"[8] MR. MAAMBONG: In other words, it is in line with the same answer of
(Emphasis supplied.) Commissioner de Castro?
In the course of the debates on the text of Section 16, there were MR. FOZ: Yes.
two (2) major changes proposed and approved by the Commission. MR. MAAMBONG: Thank you.
These were (1) the exclusion of the appointments of heads of bureaus THE PRESIDENT: Is this clear now? What is the reaction of the
from the requirement of confirmation by the Commission on Committee?
Appointments; and (2) the exclusion of appointments made under the xxx xxx xxx
second sentence[9] of the section from the same requirement. The MR. REGALADO: Madam President, the Committee feels that this
records of the deliberations of the Constitutional Commission show the matter should be submitted to the body for a vote.
following: MR. DE CASTRO: Thank you.
"MR. ROMULO: I ask that Commissioner Foz be recognized. MR. REGALADO: We will take the amendments one by one. We will
THE PRESIDENT: Commissioner Foz is recognized. first vote on the deletion of the phrase 'and bureaus' on line 26, such that
MR. FOZ: Madam President, my proposed amendment is on appointments of bureau directors no longer need confirmation by the
page 7, Section 16, line 26 which is to delete the words 'and bureaus', Commission on Appointment.
and on line 28 of the same page, to change the phrase 'colonel or naval Section 16, therefore, would read: 'The President shall nominate, and with
captain' to MAJOR GENERAL OR REAR ADMIRAL. This last the consent of a Commission on Appointments, shall appoint the heads of
amendment which is coauthored by Commissioner de Castro is to put a the executive departments, ambassadors . . . . '
period (.) after the word ADMIRAL, and on line 29 of the same page, start THE PRESIDENT: Is there any objection to delete the phrase 'and
a new sentence with: HE SHALL ALSO APPOINT, et cetera. bureaus' on page 7, line 26? (Silence) The Chair hears none; the
MR. REGALADO: May we have the amendments one by one. The first amendments is approved.
proposed amendment is to delete the words 'and bureaus' on line 26. xxx xxx xxx
MR. FOZ: That is correct. MR. ROMULO: Madam President.
MR. REGALADO: For the benefit of the other Commissioners, what THE PRESIDENT: The Acting Floor Leader is recognized.
would be the justification of the proponent for such a deletion? THE PRESIDENT: Commissioner Foz is recognized.
MR. FOZ: The position of bureau director is actually quite low MR. FOZ: Madam President, this is the third proposed
in the executive department, and to require further confirmation of amendment on page 7, line 28, I propose to put a period (.) after 'captain'
presidential appointment of heads of bureaus would subject them to and on line 29, delete 'and all' and substitute it with HE SHALL ALSO
political influence. APPOINT ANY.
MR. REGALADO: The Commissioner's proposed amendment by MR. REGALADO: Madam President, the Committee accepts the
deletion also includes regional directors as distinguished from merely staff proposed amendment because it makes it clear that those other officers
directors, because the regional directors have quite a plenitude of powers mentioned therein do not have to be confirmed by the Commission on
within the regions as distinguished from staff directors who only stay in Appointments.
MR. DAVIDE: Madam President. of the Commission on Appointments.
THE PRESIDENT: Commissioner Davide is recognized. It is contended by amicus curiae, Senator Neptali Gonzales, that the
xxx xxx xxx second sentence of Sec. 16, Article VII reading -
MR. DAVIDE: So would the proponent accept an amendment to ". . .He (the President) shall also appoint all other officers of the
his amendment, so that after 'captain' we insert the following words: AND Government whose appointments are not otherwise provided for by law
OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN and those whom he may be authorized by law to appoint ... x x x"
THIS CONSTITUTION? (Emphasis supplied)
FR. BERNAS: It is a little vague. with particular reference to the word "also", implies that the President
MR. DAVIDE: In other words, there are positions provided for in shall "in like manner" appoint the officers mentioned in said second
the Constitution whose appointments are vested in the President, as a sentence. In other words, the President shall appoint the officers
matter of fact like those of the different constitutional commissions. mentioned in said second sentence in the same manner as he appoints
FR. BERNAS: That is correct. This list of officials found in Section officers mentioned in the first sentence, that is, by nomination and with
16 is not an exclusive list of those appointments which constitutionally the consent (confirmation) of the Commission on Appointments.
require confirmation of the Commission on Appointments. Amicus curiae's reliance on the word "also" in said second sentence
MR. DAVIDE: That is the reason I seek the incorporation of the is not necessarily supportive of the conclusion he arrives at. For, as the
words I proposed. Solicitor General argues, the word "also" could mean "in addition; as well;
FR. BERNAS: Will Commissioner Davide restate is proposed besides, too" (Webster's International Dictionary, p. 62, 1981 edition)
amendment? which meanings could, on the contrary, stress that the word "also" in said
MR. DAVIDE: After 'captain', add the following: AND OTHER second sentence means that the President, in addition to nominating and,
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS with the consent of the Commission on Appointments, appointing the
CONSTITUTION. officers enumerated in the first sentence, can appoint (without such
FR. BERNAS: How about: ‘AND OTHER OFFICERS WHOSE consent (confirmation) the officers mentioned in the second sentence.
APPOINTMENT REQUIRE CONFIRMATION UNDER THIS Rather than limit the area of consideration to the possible meanings
CONSTITUTION? of the word "also" as used in the context of said second sentence, the
MR. DAVIDE: Yes, Madam President, that is modified by the Court has chosen to derive significance from the fact that the first
Committee. sentence speaks of nomination by the President and appointment by the
FR. BERNAS: That will clarify things. President with the consent of the Commission on Appointments, whereas,
THE PRESIDENT: Does the Committee accept? the second sentence speaks only of appointment by the President. And,
MR. REGALADO: Just for the record, of course, that excludes those this use of different language in two (2) sentences proximate to each
officers which the Constitution does not require confirmation by the other underscores a difference in message conveyed and perceptions
Commission on Appointments, like the members of the judiciary and the established, in line with Judge Learned Hand's observation that "words
Ombudsman. are not pebbles in alien juxtaposition" but, more so, because the recorded
MR. DAVIDE: That is correct. That is very clear from the proceedings of the 1986 Constitutional Commission clearly and expressly
modification made by Commissioner Bernas. justify such differences.
THE PRESIDENT: So we have now this proposed amendment of As a result of the innovations introduced in Sec. 16, Article VII of the
Commissioners Foz and Davide. 1987 Constitution, there are officers whose appointments require no
xxx xxx xxx confirmation of the Commission on Appointments, even if such officers
THE PRESIDENT: Is there any objection to this proposed amendment of may be higher in rank, compared to some officers whose appointments
Commissioners Foz and Davide as accepted by the Committee? (Silence) have to be confirmed by the Commission on Appointments under the first
The Chair hears none; the amendment, as amended, is approved[10]" sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the
(Emphasis supplied). appointment of the Central Bank Governor requires no confirmation by
It is, therefore, clear that appointments to the second and third groups of the Commission on Appointments, even if he is higher in rank than a
officers can be made by the President without the consent (confirmation) colonel in the Armed Forces of the Philippines or a consul in the Consular
Service.
But these contrasts, while initially impressive, merely underscore
the purposive intention and deliberate judgment of the framers of the
1987 Constitution that, except as to those officers whose appointments
require the consent of the Commission on Appointments by express
mandate of the first sentence in Sec. 16, Art. VII, appointments of other
officers are left to the President without need of confirmation by the
Commission on Appointments. This conclusion is inevitable, if we are to
presume, as we must, that the framers of the 1987 Constitution were
knowledgeable of what they were doing and of the foreseable effects
thereof.
Besides, the power to appoint is fundamentally executive or
presidential in character. Limitations on or qualifications of such power
should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is
only in the first sentence of Sec. 16, Art. VII where it is clearly stated that
appointments by the President to the positions therein enumerated
require the consent of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint,
the intervenor Commission on Appointments underscores the third
sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
"The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards." [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-
ranked officers in the President alone, this implies that, in the absence of
such a law, lower-ranked officers have to be appointed by the President
subject to confirmation by the Commission on Appointments; and, if this is
so, as to lower-ranked officers, it follows that higher-ranked officers
should be appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of
Sec. 16, Article VII, abovequoted, merely declares that, as to lower-
ranked officers, the Congress may by law vest their appointment in the
President, in the courts, or in the heads of the various departments,
agencies, commissions, or boards in the government. No reason
however is submitted for the use of the word "alone" in said third
sentence.
The Court is not impressed by both arguments. It is of the
considered opinion, after a careful study of the deliberations of the 1986
Constitutional Commission, that the use of the word "alone" after the word
"President" in said third sentence of Sec. 16, Article VII is, more than
anything else, a slip or lapsus in draftmanship. It will be recalled that, in
the 1935 Constitution, the following provision appears at the end of par. 3,
section 10, Article VII thereof -
"x x x ; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of
departments." [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after
the provision which makes practically all presidential appointments
subject to confirmation by the Commission on Appointments, thus -
"3. The President shall nominate and with the consent of the Commission
on Appointments, shall appoint the heads of the executive departments
and bureaus, officers of the Army from the rank of colonel, of the Navy
and Air Forces from the rank of captain or commander, and all other
officers of the Government whose appointments are not herein provided
for, and those whom he may be authorized by law to appoint; x x x"
In other words, since the 1935 Constitution subjects, as a general rule,
presidential appointments to confirmation by the Commission on
Appointments, the same 1935 Constitution saw fit, by way of an exception
to such rule, to provide that Congress may, however, by law vest the
appointment of inferior officers (equivalent to "officers lower in rank"
referred to in the 1987 Constitution) in the President alone, in the courts,
or in the heads of departments.
In the 1987 Constitution, however, as already pointed out, the clear and
expressed intent of its framers was to exclude presidential appointments
from confirmation by the Commission on Appointments, except
appointments to offices expressly mentioned in the first sentence of Sec.
16, Article VII. Consequently, there was no reason to use in the third
sentence of Sec. 16, Article VII the word "alone" after the word
"President" in providing that Congress may by law vest the appointment
of lower-ranked officers in the President alone, or in the courts, or in the
heads of departments, because the power to appoint officers whom he
(the President) may be authorized by law to appoint is already vested in
the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated
merely that, in the case of lower-ranked officers, the Congress may by
law vest their appointment in the President, in the courts, or in the heads
of various departments of the government. In short, the word "alone" in
the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a
literal import from the last part of par. 3, section 10, Article VII of the 1935
Constitution, appears to be redundant in the light of the second sentence
of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear
and positive intent of the framers of the 1987 Constitution that presidential
appointments, except those mentioned in the first sentence of Sec. 16,
Article VII, are not subject to confirmation by the Commission on Customs is one that devolves on the President, as an appointment he is
Appointments. authorized by law to make, such appointment, however, no longer needs
Coming now to the immediate question before the Court, it is evident that the confirmation of the Commission on Appointments.
the position of Commissioner of the Bureau of Customs (a bureau head) Consequently, we rule that the President of the Philippines acted within
is not one of those within the first group of appointments where the her constitutional authority and Power in appointing respondent Salvador
consent of the Commission on Appointments is required. As a matter of Mison, Commissioner of the Bureau of Customs, without submitting his
fact, as already pointed out, while the 1935 Constitution includes "heads nomination to the Commission on Appointments for confirmation. He is
of bureaus" among those officers whose appointments need the consent thus entitled to exercise the full authority and functions of the office and to
of the Commission on Appointments, the 1987 Constitution, on the other receive all the salaries and emoluments pertaining thereto.
hand, deliberately excluded the position of "heads of bureaus" from WHEREFORE, the petition and petition in intervention should be, as
appointments that need the consent (confirmation) of the Commission on they are, hereby DISMISSED. Without costs.
Appointments.
Moreover, the President is expressly authorized by law to appoint
the Commissioner of the Bureau of Customs. The original text of Sec.
601 of Republic Act No. 1937, otherwise known as "The Tariff and
Customs Code of the Philippines", which was enacted by the Congress of
the Philippines on 22 June 1957, reads as follows:
"601. Chief Officials of the Bureau. -- The Bureau of Customs shall have
one chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as the 'Commissioner') and Assistant
Commissioner of Customs, who shall each receive an annual
compensation in accordance with the rates prescribed by existing laws.
The Assistant Commissioner of Customs shall be appointed by the proper
department head."
Sec. 601 of Republic Act No. 1937, was amended on 27 October
1972 by Presidential Decree No. 34, amending the Tariff and Customs
Code of the Philippines. Sec. 601, as thus amended, now reads as
follows:
"Sec. 601. Chief Officials of the Bureau of Customs. -- The Bureau of
Customs shall have one chief and one assistant chief, to be known
respectively as the Commissioner (hereinafter known as Commissioner)
and Deputy Commissioner of Customs, who shall each receive an annual
compensation in accordance with the rates prescribed by existing law.
The Commissioner and the Deputy Commissioner of Customs shall be
appointed by the President of the Philippines." (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved
during the effectivity of the 1935 Constitution, under which the President
may nominate and, with the consent of the Commission on Appointments,
appoint the heads of bureaus, like the Commissioner of the Bureau of
Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937
and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the
result that, while the appointment of the Commissioner of the Bureau of
EN BANC
G.R. No. 91636, April 23, 1992
PETER JOHN D. CALDERON, PETITIONER, VS. BARTOLOME
CARALE, IN HIS CAPACITY AS CHAIRMAN OF THE NATIONAL
LABOR RELATIONS COMMISSION; EDNA BONTO PEREZ,
LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT,
DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B.
BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO
B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE
S. BATUHAN, AND OSCAR N. ABELLA, IN THEIR CAPACITY AS
COMMISSIONERS OF THE NATIONAL LABOR RELATIONS
COMMISSION; AND GUILLERMO CARAGUE, IN HIS CAPACITY AS
SECRETARY OF BUDGET AND MANAGEMENT, RESPONDENTS.
DECISION
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987
Constitution which provides:
"Sec. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose appoint-
ments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or
boards.
"The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress."[1]
The power of the Commission on Appointments (CA for brevity) to
confirm appointments, contained in the aforequoted paragraph 1 of Sec.
16, Art. VII, was first construed in Sarmiento III vs. Mison[2] as follows:
"x x x it is evident that the position of Commissioner of the Bureau of
Customs (a bureau head) is not one of those within the first group of
appointments where the consent of the Commission on Appointments is
required. As a matter of fact, as already pointed out, while the 1935
Constitution includes 'heads of bureaus' among those officers whose
appointments need the consent of the Commission on Appointments, the
1987 Constitution, on the other hand, deliberately excluded the position of
'heads of bureaus' from appointments that need the consent
(confirmation) of the Commission on Appointments.
"x x x Consequently, we rule that the President of the Philippines acted
within her constitutional authority and power in appointing respondent
Salvador Mison, Commissioner of the Bureau of Customs, without
submitting his nomination to the Commission on Appointments for
confirmation. x x x."
"x x x In the 1987 Constitution, however, as already pointed out, the clear
and expressed intent of its framers was to exclude presidential
appointments from confirmation by the Commission on Appointments,
except appointments to offices expressly mentioned in the first sentence
of Sec. 16, Art. VII. Consequently, there was no reason to use in the third
sentence of Sec. 16, Article VII the word 'alone' after the word 'President'
in providing that Congress may by law vest the appointment of lower-
ranked officers in the President alone, or in the courts, or in the heads of
departments, because the power to appoint officers whom he (the
President) may be authorized by law to appoint is already vested in the
President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII."
(underlining supplied)
Next came Mary Concepcion Bautista v. Salonga,[3] this time
involving the appointment of the Chairman of the Commission on Human
Rights. Adhering to the doctrine in Mison, the Court explained:
"x x x Since the position of Chairman of the Commission on Human
Rights is not among the positions mentioned in the first sentence of Sec.
16, Art. VII of the 1987 Constitution, appointments to which are to be
made with the confirmation of the Commission on Appointments, it follows
that the appointment by the President of the Chairman of the CHR is to be
made without the review or participation of the Commission on
Appointments. To be more precise, the appointment of the Chairman and
Members of the Commission on Human Rights is not specifically provided
for in the Constitution itself, unlike the Chairmen and Members of the Civil
Service Commission, the Commission on Elections and the Commission
on Audit, whose appointments are expressly vested by the Constitution in
the President with the consent of the Commission on Appointments. The
President appoints the Chairman and Members of the Commission on
Human Rights pursuant to the second sentence in Section 16, Art. VII,
that is, without the confirmation of the Commission on Appointments
because they are among the officers of government 'whom he (the
President) may be authorized by law to appoint.' And Section 2(c),
Executive Order No. 163, 5 May 1987, authorizes the President to appoint
the Chairman and Members of the Commission on Human Rights."
Consistent with its rulings in Mison and Bautista, in Teresita Quintos
Deles, et al. v. The Commission on Constitutional Commissions, et al.,[4]
the power of confirmation of the Commission on Appointments over
appointments by the President of sectoral representatives in Congress
was upheld because:
"x x x Since the seats reserved for sectoral representatives in paragraph
2, Section 5, Art. VI may be filled by appointment by the President by
express provision of Section 7, Art. XVIII of the Constitution, it is
indubitable that sectoral representatives to the House of Representatives
are among the 'other officers whose appointments are vested in the
President in this Constitution,' referred to in the first sentence of Section
16, Art. VII whose appointments are subject to confirmation by the
Commission on Appointments."
From the three (3) cases above-mentioned, these doctrines are
deducible:
1. Confirmation by the Commission on Appointments is required only for
presidential appointees mentioned in the first sentence of Section 16,
Article VII, including, those officers whose appointments are expressly
vested by the Constitution itself in the president (like sectoral repre-
sentatives to Congress and members of the constitutional commissions of
Audit, Civil Service and Election).
2. Confirmation is not required when the President appoints other
government officers whose appointments are not otherwise provided for
by law or those officers whom he may be authorized by law to appoint
(like the Chairman and Members of the Commission on Human Rights).
Also, as observed in Mison, when Congress creates inferior offices but
omits to provide for appointment thereto, or provides in an
unconstitutional manner for such appointments, the officers are
considered as among those whose appointments are not otherwise
provided for by law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the
Labor Code (PD 442) was approved. It provides in Section 13 thereof as
follows:
"x x x
The Chairman, the Division Presiding Commis sioners and other
Commissioners shall all be appointed by the President, subject to
confirmation by the Commission on Appointments. Appointments to any
vacancy shall come from the nominees of the sector which nominated the
predecessor. The Executive Labor Arbiters and Labor Arbiters shall also
be appointed by the President, upon recommendation of the Secretary of
Labor and Employment, and shall be subject to the Civil Service Law,
rules and regulations."[5]
Pursuant to said law (RA 6715), President Aquino appointed the
Chairman and Commissioners of the NLRC representing the public,
workers and employers sectors. The appointments stated that the
appointees may qualify and enter upon the performance of the duties of
the office. After said appointments, then Labor Secretary Franklin Drilon
issued Administrative Order No. 161, series of 1989, designating the
places of assignment of the newly appointed commissioners.
This petition for prohibition questions the constitutionality and
legality of the permanent appointments extended by the President of the
Philippines to the respondents Chairman and Members of the National
Labor Relations Commission (NLRC), without submitting the same to the
Commission on Appointments for confirmation pursuant to Art. 215 of the
Labor Code as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715 which
has in its favor the presumption of validity. RA 6715 is not, according to
petitioner, an encroachment on the appointing power of the executive
contained in Section 16, Art. VII, of the Constitution, as Congress may, by
law, require confirmation by the Commission on Appointments of other
officers appointed by the President additional to those mentioned in the
first sentence of Section 16 of Article VII of the Constitution. Petitioner
claims that the Mison and Bautista rulings are not decisive of the issue in
this case for in the case at bar, the President issued permanent
appointments to the respondents without submitting them to the CA for
confirmation despite passage of a law (RA 6715) which requires the
confirmation by the Commission on Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA 6715
which amended the Labor Code transgresses Section 16, Article VII by
expanding the confirmation powers of the Commission on Appointments
without constitutional basis. Mison and Bautista laid the issue to rest,
says the Solicitor General, with the following exposition:
"As interpreted by this Honorable Court in the Mison case, confirmation by
the Commission on Appointments is required exclusively for the heads of
executive departments, ambassadors, public ministers, consuls, officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in the President by the
Constitution, such as the members of the various Constitutional
Commissions. With respect to the other officers whose appointments are
not otherwise provided for by the law and to those whom the President
may be authorized by law to appoint, no confirmation by the Commission
on Appointments is required.
"Had it been the intention to allow Congress to expand the list of officers
whose appointments must be confirmed by the Commission on Appoint-
ments, the Constitution would have said so by adding the phrase "and
other officers required by law" at the end of the first sentence, or the
phrase, "with the consent of the Commission on Appointments" at the end
of the second sentence. Evidently, our Constitution has significantly
omitted to provide for such additions.
"The original text of Section 16 of Article VII of the present Constitution as
embodied in Resolution No. 517 of the Constitutional Commission reads
as follows:
'The President shall nominate and, with the consent of the Commission
on Appointments, shall appoint the heads of the excutive departments
and bureaus, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of captain or commander, and all other
officers of the Government whose appointments are not herein otherwise
provided for by law, and those whom he may be authorized by law to
appoint. The Congress may by law vest the appointment of inferior
officers in the President alone, in the courts or in the heads of the
department.'
"Three points should be noted regarding subsection 3 of Section 10 of
Article VII of the 1935 Constitution and in the original text of Section 16 of
Article VII of the present Constitution as proposed in Resolution No. 517.
"First, in both of them, the appointments of heads of bureaus were
required to be confirmed by the Commission on Appointments.
"Second, in both of them, the appointments of other officers, "whose
appointments are not otherwise provided for by law to appoint" are
expressly made subject to confirmation by the Commission on
Appointments. However, in the final version of Resolution No. 517, as
embodied in Section 16 of Article VII of the present Constitution, the
appointment of the above mentioned officers (heads of bureaus; other
officers whose appointments are not provided for by law; and those whom
he may be authorized by law to appoint) are excluded from the list of
those officers whose appointments are to be confirmed by the
Commission on Appointments. This amendment, reflected in Section 16
of Article VII of the Constitution, clearly shows the intent of the framers to
exclude such appointments from the requirement of confirmation by the
Commission on Appointments.
"Third, under the 1935 Constitution the word "nominate" qualifies the
entire Subsection 3 of Section 10 of Article VII thereof.
"Respondent reiterates that if confirmation is required, the three (3) stage
process of nomination, confirmation and appointment operates. This is
only true of the first group enumerated in Section 16, but the word
nominate does not any more appear in the 2nd and 3rd sentences.
Therefore, the president's appointment pursuant to the 2nd and 3rd
sentences need no confirmation."[6]
The only issue to be resolved by the Court in the present case is whether
or not Congress may, by law, require confirmation by the Commission on
Appointments of appointments extended by the President to government
officers additional to those expressly mentioned in the first sentence of
Sec. 16, Art. VII of the Constitution whose appointments require
confirmation by the Commission on Appointments.
To resolve the issue, we go back to Mison where the Court stated:
"x x x there are four (4) groups of officers whom the President shall
appoint. These four (4) groups, to which we will hereafter refer from time
to time, are:
'First, the heads of the executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of
colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution;
'Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
'Third, those whom the President may be authorized by law to appoint;
'Fourth, officers lower in rank whose appointments the Congress may by
law vest in the President alone.'"[7]
Mison also opined:
"In the course of the debates on the text of Section 16, there were two (2)
major changes proposed and approved by the Commission. These were
(1) the exclusion of the appointments of heads of bureaus from the
requirement of confirmation by the Commission on Appointments; and (2)
the exclusion of appointments made under the second sentence of the
section from the same requirement. x x x."
The second sentence of Sec. 16, Art. VII refers to all other officers of the
government whose appointments are not otherwise provided for by law
and those whom the President may be authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within the
second sentence of Section 16, Article VII of the Constitution, more
specifically under the "third groups" of appointees referred to in Mison, i.e.
those whom the President may be authorized by law to appoint.
Undeniably, the Chairman and Members of the NLRC are not among the
officers mentioned in the first sentence of Section 16, Article VII whose
appointments requires confirmation by the Commission on Appointments.
To the extent that RA 6715 requires confirmation by the Commission on
Appointments of the appointments of respondents Chairman and
Members of the National Labor Relations Commission, it is
unconstitutional because:
1. It amends by legislation, the first sentence of Sec. 16, Art. VII of the
Constitution by adding thereto appointments requiring confirmation by the
Commission on Appointments; and
2. It amends by legislation the second sentence of Sec. 16, Art. VII of the
Constitution, by imposing the confirmation of the Commission on
Appointments on appointments which are otherwise entrusted only with
the President.
Deciding on what laws to pass is a legislative prerogative. Determining
their constitutionality is a judicial function. The Court respects the
laudable intention of the legislature. Regretfully, however, the
constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the
Labor Code, insofar as it requires confirmation of the Commission on
Appointments over appointments of the Chairman and Members of the
National Labor Relations Commission (NLRC) is, as we see it, beyond
redemption if we are to render fealty to the mandate of the Constitution in
Sec. 16, Art. VII thereof.
Supreme Court decisions applying or interpreting the Constitution shall
form part of the legal system of the Philippines. 10 No doctrine or principle
of law laid down by the Court in a decision rendered en banc or in division
may be modified or reversed except by the Court sitting en banc.11
"x x x The interpretation upon a law by this Court constitutes, in a way, a
part of the law as of the date that law was originally passed, since this
Court's construction merely establishes the contemporaneous legislative
intent that the law thus construed intends to effectuate. The settled rule
supported by numerous authorities is a restatement of the legal maxim
'legis interpretado legis vim obtinent' - the interpretation placed upon the
written law by a competent court has the force of law."12
The rulings in Mison, Bautista and Quintos-Deles have interpreted Art.
VII, Sec. 16 consistently in one manner. Can legislation expand a
constitutional provision after the Supreme Court has interpreted it?
In Endencia and Jugo vs. David,13 the Court held:
"By legislative fiat as enunciated in section 13, Republic Act No. 590,
Congress says that taxing the salary of a judicial officer is not a decrease
of compensation. This is a clear example of interpretation or
ascertainment of the meaning of the phrase 'which shall not be diminished
during their continuance in office,' found in section 9, Article VIII of the
Constitution, referring to the salaries of judicial officers."
xxx xxx
'The rule is recognized elsewhere that the legislature cannot pass any
declaratory act, or act declaratory of what the law was before its passage,
so as to give it any binding weight with the courts. A legislative definition
of a word as used in a statute is not conclusive of its meaning as used
elsewhere; otherwise, the legislature would be usurping a judicial function
in defining a term. (11 Am. Jur., 914, italics supplied).
'The legislature cannot, upon passing law which violates a constitutional
provision, validate it so as to prevent an attack thereon in the courts, by a
declaration that it shall be so construed as not to violate the constitutional
inhibition.' (11 Am., Jur., 919, italics supplied).
"We have already said that the Legislature under our form of government
is assigned the task and the power to make and enact laws, but not to
interpret them. This is more true with regard to the interpretation of the
basic law, the Constitution, which is not within the sphere of the
Legislative department. If the Legislature may declare what a law means,
or what a specific portion of the Constitution means, especially after the
courts have in actual case ascertained its meaning by interpretation and
applied it in a decision, this would surely cause confusion and instability in
judicial processes and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law or of
the Constitution may be undermined or even annulled by a subse quent
and different interpretation of the law or of the Constitution by the
Legislative department. That would be neither wise nor desirable,
besides being clearly violative of the fundamental principles of our
constitutional system of government, particularly those governing the
separation of powers."14 (underscoring supplied)
Congress, of course, must interpret the Constitution, must estimate the
scope of its constitutional powers when it sets out to enact legislation and
it must take into account the relevant constitutional prohibitions.15
"x x x The Constitution did not change with public opinion.
It is not only the same words, but the same in meaning….: and as long as
it it speaks not only in the same words, but with the same meaning and
intent with which it spoke when it came from the hands of its framers, and
was voted and adopted by the people ..."16
The function of the Court in passing upon an act of Congress is to "lay the
article of the Constitution which is invoked beside the statute which is
challenged and to decide whether the latter squares with the former" and
to "announce its considered judgment upon the question."17
It cannot be overlooked that Sec. 16, Art. VII of the 1987 Constitution was
deliberately, not unconsciously, intended by the framers of the 1987
Constitution to be a departure from the system embodied in the 1935
Constitution where the Commission on Appointments exercised the power
of confirmation over almost all presidential appointments, leading to many
cases of abuse of such power of confirmation. Subsection 3, Section 10,
Art. VII of the 1935 Constitution provided:
"3. The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the executive
departments and bureaus, officers of the Army from the rank of colonel, of
the Navy and Air Forces from the rank of captain or commander, and all
other officers of the Government whose appointments are not herein
otherwise provided for, and those whom he may be authorized by law to
appoint; x x x"
The deliberate limitation on the power of confirmation of the Commission
on Appointments over presidential appointments, embodied in Sec. 16,
Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure
and disapproval of members of Congress. The solution to the apparent
problem, if indeed a problem, is not judicial or legislative but
constitutional. A future constitutional convention or Congress sitting as a
constituent (constitutional) assembly may then consider either a return to
the 1935 Constitutional provisions or the adoption of a hybrid system
between the 1935 and 1987 constitutional provisions. Until then, it is the
duty of the Court to apply the 1987 Constitution in accordance with what it
says and not in accordance with how the legislature or the executive
would want it interpreted.
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor
Code as amended by RA 6715 insofar as it requires the confirmation of
the Commission on Appointments of appointments of the Chairman and
Members of the National Labor Relations Commission (NLRC) is hereby
declared unconstitutional and of no legal force and effect.
CALDERON VS. CARALE
- Calderon questions the constitutionality and legality of the permanent
appointments extended by the President to respondents chairman and
members of the NLRC without submitting the same to the Commission on
Appointments for confirmation pursuant to ARTICLE 215 of the Labor
Code, as amended by RA. 6715 (Herrrera-Veloso Law or the Act
amending the Labor Code reorganizing the NLRC)
SC: The NLRC Chairman and Commissioners fall within the 2nd sentence
of Sec. 16, ARTICLE VII of the Constitution more specifically under the
“third group” of appointees – those whom the President may be
authorized by law to appoint. Undeniably, the chairman and members of
the NLRC are not among the officers mentioned in the 1st sentence of
Sec. 16, ARCTICLE VII, whose appointments require confirmation by the
Commission on Appointments. To the extent that RA. 6715 requires
confirmation by the Commission on Appointments of the appointments of
respondent chairman and members of NLRC, it is unconstitutional.
- SC clarified that this list is EXCLUSIVE. Congress by a mere legislative
act may not validly amend the constitution by adding or deducting
anything from that list
[G.R. No. 107369. August 11, 1999]
JESULITO A. MANALO, petitioner, vs. PEDRO G. SISTOZA, REGINO
ARO III, NICASIO MA. CUSTODIO, GUILLERMO DOMONDON,
RAYMUNDO L. LOGAN, WILFREDO R. REOTUTAR, FELINO C.
PACHECO, JR., RUBEN J. CRUZ, GERONIMO B. VALDERRAMA,
MERARDO G. ABAYA, EVERLINO B. NARTATEZ, ENRIQUE T.
BULAN, PEDRO J. NAVARRO, DOMINADOR M. MANGUBAT,
RODOLFO M. GARCIA and HONORABLE SALVADOR M. ENRIQUEZ
II In His Capacity as Secretary of Budget and Management,
respondents.
DECISION
PURISIMA, J.:
The case at bar is not of first impression. The issue posed
concerning the limits of the power of the Commission on Appointments to
confirm appointments issued by the Chief Executive has been put to rest
in a number of cases. The court finds no basis for departing from the
ruling laid down in those cases.
In this special civil action for Prohibition under Rule 65 of the
Revised Rules of Court, petitioners question the constitutionality and
legality of the permanent appointments issued by former President
Corazon C. Aquino to the respondent senior officers of the Philippine
National Police who were promoted to the ranks of Chief Superintendent
and Director without their appointments submitted to the Commission on
Appointments for confirmation under Section 16, Article VII of the 1987
Constitution and Republic Act 6975 otherwise known as the Local
Government Act of 1990. Impleaded in the case is the former Secretary of
Budget and Management Salvador M. Enriquez III, who approved and
effected the disbursements for the salaries and other emoluments of
subject police officers.
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the Department
of Interior and Local Government was signed into law by former President
Corazon C. Aquino. Pertinent provisions of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP Chief. - The
command and direction of the PNP shall be vested in the Chief of the
PNP who shall have the power to direct and control tactical as well as
strategic movements, deployment, placement, utilization of the PNP or
any of its units and personal, including its equipment, facilities and other
resources. Such command and direction of the Chief of the PNP may be
delegated to subordinate officials with respect to the units under their
respective commands, in accordance with the rules and regulations
prescribed by the Commission. The Chief of the PNP shal also have the
power to issue detailed implementing policies and instructions regarding
personnel, funds, properties, records, correspondence and such other
matters as may be necesary to effectively carry out the functions, powers
and duties of the Bureau. The Chief of the PNP shall be appointed by the
President from among the senior officers down to the rank of the chief
superintendent, subject to confirmation by the Commission on
Appointments: Provided, That the Chief of the PNP shall serve a term of
office not to exceed four (4) years: Provided, further, That in times of war
or other national emergency declared by Congress, the President may
extend such term of office. [if !supportFootnotes][1][endif] (underlining supplied).
Sec.31. Appointment of PNP Officers and Members. - The appointment of
the officers and members of the PNP shall be effected in the following
manner:
(a) Police Officer I to Senior Police Officer IV - Appointed by the PNP
regional director for regional personnel or by the Chief of the PNP for the
national headquarters personnel and attested by the Civil Service
Commission;
(b) Inspector to Superintendent - Appointed by the Chief of the PNP, as
recommended by their immediate superiors, and attested by the Civil
Service Commission;
(c) Senior Superintendent to Deputy Director General - Appointed by the
President upon recommendation of the Chief of the PNP, with the proper
endorsement by the Chairman of the Civil Service Commission and
subject to confirmation by the Commission on Appointments; and
(d) Director General - Appointed by the President from among the senior
officers down to the rank of chief superintendent in the service, subject to
confirmation by the Commission on Appointments; Provided, That the
Chief of the PNP shall serve a tour of duty not to exceed four (4) years;
Provided, further, That, in times of war or other national emergency
declared by Congres, the President may extend such tour of duty.
(underlining supplied).
In accordance therewith, on March 10, 1992, the President of the
Philippines, through then Executive Secretary Franklin M. Drilon,
promoted the fifteen (15) respondent police officers herein, by appointing
them to positions in the Philippine National Police with the rank of Chief
Superintendent to Director[if !supportFootnotes][2][endif], namely:
Chief Supt. PEDRO G. SISTOZA - Director
Chief Supt. REGINO ARO III - Director
Chief Supt. NICASIO MA. CUSTODIO - Director
Chief Supt. GUILLERMO DOMONDON - Director
Chief Supt. RAYMUNDO L. LOGAN - Director
Senior Supt. WILFREDO REOTUTAR - Chief Superintendent
Senior Supt. FELINO C. PACHECO, JR. - Chief Superintendent
Senior Supt. RUBEN J. CRUZ - Chief Superintendent
Senior Supt. GERONIMO B. VALDERRAMA - Chief Superintendent
Senior Supt. MERARDO G. ABAYA - Chief Superintendent
Senior Supt. EVERLINO NARTATEZ - Chief Superintendent
Senior Supt. ENRIQUE T. BULAN - Chief Superintendent
Senior Supt. PEDRO J. NAVARRO - Chief Superintendent
Senior Supt. DOMINADOR MANGUBAT - Chief Superintendent
Senior Supt. RODOLFO M. GARCIA - Chief Superintendent
The appointments of respondent police officers were in a
permanent capacity. Their letters of appointment stated in part :
By virtue hereof, they may qualify and enter upon the performance of the
duties of the office, furnishing this office and the Civil Service Commission
with copies of their oath of office.[if !supportFootnotes][3][endif]
Without their names submitted to the Commission on Appointments
for confirmation, the said police officers took their oath of office and
assumed their respective positions. Thereafter, the Department of Budget
and Management, under the then Secretary Salvador M. Enriquez III,
authorized disbursements for their salaries and other emoluments.
On October 21, 1992, the petitioner brought before this Court this
present original petition for prohibition, as a taxpayer suit, to assail the
legality of subject appointments and disbursements made therefor.
Petitioner contends that:
I. Respondent officers, in assuming their offices and discharging the
functions attached thereto, despite their invalid appointments, in view of
the failure to secure the required confirmation of the Commission on
Appointments as required by the Constitution and the law, are acting
without or in excess of their jurisdiction or with grave abuse of discretion,
considering that :
A. Republic Act 6975 is a valid law that duly requires confirmation of the
appointments of officers from the rank of senior superintendent and
higher by the Commission on Appointments;
B. The Philippine National Police is akin to the Armed Forces where the
Constitution specifically requires confirmation by the Commission on
Appointments.
II. Respondent Secretary in allowing and/or effecting disbursements in
favor of respondent officers despite the unconstitutionality and illegality of
their appointments is acting without or in excess of his jurisdiction or with
grave abuse of discretion.
The petition must fail. It is not impressed with merit.
Petitioner theorizes that Republic Act 6975 enjoys the presumption
of constitutionality and that every statute passed by Congress is
presumed to have been carefully studied and considered before its
enactment. He maintains that the respect accorded to each department of
the government requires that the court should avoid, as much as possible,
deciding constitutional questions.
The Court agrees with petitioner. However, it is equally demanded
from the courts, as guardians of the Constitution, to see to it that every
law passed by Congress is not repugnant to the organic law. Courts have
the inherent authority to determine whether a statute enacted by the
legislature transcends the limit delineated by the fundamental law.[if !
supportFootnotes][4][endif] When it does, the courts will not hesitate to strike down
such unconstitutional law.
The power to make appointments is vested in the Chief Executive
by Section 16, Article VII of the Constitution, which provides:
Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or
boards.
The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress.
The aforecited provision of the Constitution has been the subject of
several cases on the issue of the restrictive function of the Commission
on Appointments with respect to the appointing power of the President.
This court touched upon the historical antecedent of the said provision in
the case of Sarmiento III vs. Mison [if !supportFootnotes][5][endif] in which it was
ratiocinated upon that Section 16 of Article VII of the 1987 Constitution
requiring confirmation by the Commission on Appointments of certain
appointments issued by the President contemplates a system of checks
and balances between the executive and legislative branches of
government. Experience showed that when almost all presidential
appointments required the consent of the Commission on Appointments,
as was the case under the 1935 Constitution, the commission became a
venue of horse-trading and similar malpractices.[if !supportFootnotes][6][endif] On the
other hand, placing absolute power to make appointments in the
President with hardly any check by the legislature, as what happened
under 1973 Constitution, leads to abuse of such power. Thus was
perceived the need to establish a middle ground between the 1935 and
1973 Constitutions. The framers of the 1987 Constitution deemed it
imperative to subject certain high positions in the government to the
power of confirmation of the Commission on Appointments and to allow
other positions within the exclusive appointing power of the President.
Conformably, as consistently interpreted and ruled in the leading
case of Sarmiento III vs. Mison [if !supportFootnotes][7][endif], and in the subsequent
cases of Bautista vs. Salonga[if !supportFootnotes][8][endif], Quintos-Deles vs.
Constitutional Commission[if !supportFootnotes][9][endif], and Calderon vs. Carale [if !
supportFootnotes][10][endif]; under Section 16, Article VII, of the Constitution, there
are four groups of officers of the government to be appointed by the
President:
First, the heads of the executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of
colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by
law vest in the President alone.
It is well-settled that only presidential appointments belonging to the
first group require the confirmation by the Commission on Appointments.
The appointments of respondent officers who are not within the first
category, need not be confirmed by the Commission on Appointments. As
held in the case of Tarrosa vs. Singson[if !supportFootnotes][11][endif], Congress
cannot by law expand the power of confirmation of the Commission on
Appointments and require confirmation of appointments of other
government officials not mentioned in the first sentence of Section 16 of
Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of Republic
Act 6975 which empower the Commission on Appointments to confirm the
appointments of public officials whose appointments are not required by
the Constitution to be confirmed. But the unconstitutionality of the
aforesaid sections notwithstanding, the rest of Republic Act 6975 stands.
It is well-settled that when provisions of law declared void are severable
from the main statute and the removal of the unconstitutional provisions
would not affect the validity and enforceability of the other provisions, the
statute remains valid without its voided sections.[if !supportFootnotes][12][endif]
It is petitioners submission that the Philippine National Police is akin
to the Armed Forces of the Philippines and therefore, the appointments of
police officers whose rank is equal to that of colonel or naval captain
require confirmation by the Commission on Appointments.
This contention is equally untenable. The Philippine National Police
is separate and distinct from the Armed Forces of the Philippines. The
Constitution, no less, sets forth the distinction. Under Section 4 of Article
XVI of the 1987 Constitution,
The Armed Forces of the Philippines shall be composed of a citizen
armed force which shall undergo military training and service, as may be
provided by law. It shall keep a regular force necessary for the security of
the State.
On the other hand, Section 6 of the same Article of the Constitution
ordains that:
The State shall establish and maintain one police force, which shall be
national in scope and civilian in character to be administered and
controlled by a national police commission. The authority of local
executives over the police units in their jurisdiction shall be provided by
law.
To so distinguish the police force from the armed forces, Congress
enacted Republic Act 6975 which states in part:
Section 2. Declaration of policy - It is hereby declared to be the policy of
the State to promote peace and order, ensure public safety and further
strengthen local government capability aimed towards the effective
delivery of the basic services to the citizenry through the establishment of
a highly efficient and competent police force that is national in scope and
civilian in character. xxx
The policy force shall be organized, trained and equipped primarily for the
performance of police functions. Its national scope and civilian character
shall be paramount. No element of the police force shall be military nor
shall any position thereof be occupied by active members of the Armed
Forces of the Philippines.
Thereunder, the police force is different from and independent of
the armed forces and the ranks in the military are not similar to those in
the Philippine National Police. Thus, directors and chief superintendents
of the PNP, such as the herein respondent police officers, do not fall
under the first category of presidential appointees requiring the
confirmation by the Commission on Appointments.
In view of the foregoing disquisition and conclusion, the respondent
former Secretary Salvador M. Enriquez III of the Department of Budget
and Management, did not act with grave abuse of discretion in authorizing
and effecting disbursements for the salaries and other emoluments of the
respondent police officers whose appointments are valid.
WHEREFORE, for lack of merit, the petition under consideration is hereby
DISMISSED. No pronouncement as to costs.
SO ORDERED.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers by appointing them to
positions in the PNP with the rank of Chief Superintendent to Director.
Without their names submitted to the Commission on Appointments for
confirmation, the said police officers took their oath and assumed their
respective positions. Manalo questioned this on the ground that both
under Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local
Govt Act of 1990) require their appointments to be submitted for
confirmation and that PNP is akin to the AFP.

SC: Only presidential appointments belonging to the first group require

confirmation by the Commission on Appointments. The appointments of
police officers who are not within the first category need not be confirmed
by the Commission on Appointments. Consequently, unconstitutional are
Sections 26 and 31 of RA. 6975 which empowers the Commission on
Appointments to confirm the appointments of public officials whose
appointments are not required by the Constitution to be confirmed.
- The PNP is separate and distinct from the AFP. The Constitution no
less, sets forth the distinction. Under Sec. 4, ARTICLE XVII, “the armed
forces of the Philippines shall be composed of a citizen armed force which
shall undergo military training and service, as may be provided by law. It
shall keep a regular force necessary for the security of the state.” On the
other hand, Sec. 6 of the same article ordains that: “The state shall
establish and maintain one police force, which shall be national in scope
and civilian in character to administered and controlled by a national
police commission. The authority of local executives over the police units
in their jurisdiction shall be provided by law.
- To so distinguish the police force from the armed force, Congress
enacted RA. 6975. Thereunder the police force is different from and
independent of the armed forces and the ranks int eh military are not
similar to those in the PNP.
- Present PNP is no longer part of the AFP; is a civilian institution placed
under DILG. Unlike PCINP, which is a part of AFP, it is in fact armed
forces.
EN BANC
G.R. No. 149036, April 02, 2002
MA. J. ANGELINA G. MATIBAG, PETITIONER, VS. ALFREDO L.
BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON,
JR., VELMA J. CINCO, AND GIDEON C. DE GUZMAN IN HIS
CAPACITY AS OFFICER-IN-CHARGE, FINANCE SERVICES
DEPARTMENT OF THE COMMISSION ON ELECTIONS,
RESPONDENTS.
DECISION
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance
of a writ of preliminary injunction and a temporary restraining order under
Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina
G. Matibag (“Petitioner” for brevity) questions the constitutionality of the
appointment and the right to hold office of the following: (1) Alfredo L.
Benipayo (“Benipayo” for brevity) as Chairman of the Commission on
Elections (“COMELEC” for brevity); and (2) Resurreccion Z. Borra
(“Borra” for brevity) and Florentino A. Tuason, Jr. (“Tuason” for brevity) as
COMELEC Commissioners. Petitioner also questions the legality of the
appointment of Velma J. Cinco[1] (“Cinco” for brevity) as Director IV of the
COMELEC’s Education and Information Department (“EID” for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as
“Acting Director IV” of the EID. On February 15, 2000, then Chairperson
Harriet O. Demetriou renewed the appointment of petitioner as Director IV
of EID in a “Temporary” capacity. On February 15, 2001, Commissioner
Rufino S.B. Javier renewed again the appointment of petitioner to the
same position in a “Temporary” capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad
interim, Benipayo as COMELEC Chairman,[3] and Borra[4] and Tuason[5] as
COMELEC Commissioners, each for a term of seven years and all
expiring on February 2, 2008. Benipayo took his oath of office and
assumed the position of COMELEC Chairman. Borra and Tuason
likewise took their oaths of office and assumed their positions as
COMELEC Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad interim
appointments of Benipayo, Borra and Tuason for confirmation.[6] However,
the Commission on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments
of Benipayo, Borra and Tuason to the same positions and for the same
term of seven years, expiring on February 2, 2008.[7] They took their oaths
of office for a second time. The Office of the President transmitted on
June 5, 2001 their appointments to the Commission on Appointments for
confirmation.[8]
Congress adjourned before the Commission on Appointments could act
on their appointments. Thus, on June 8, 2001, President Macapagal
Arroyo renewed again the ad interim appointments of Benipayo, Borra
and Tuason to the same positions.[9] The Office of the President submitted
their appointments for confirmation to the Commission on Appointments.
[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum
dated April 11, 2001[11] addressed to petitioner as Director IV of the EID
and to Cinco as Director III also of the EID, designating Cinco Officer-in-
Charge of the EID and reassigning petitioner to the Law Department.
COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to
petitioner’s reassignment in a Memorandum dated April 14, 2001[12]
addressed to the COMELEC en banc. Specifically, Commissioner Sadain
questioned Benipayo’s failure to consult the Commissioner-in-Charge of
the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief
as Director IV of the EID and her reassignment to the Law Department. [13]
Petitioner cited Civil Service Commission Memorandum Circular No. 7
dated April 10, 2001, reminding heads of government offices that “transfer
and detail of employees are prohibited during the election period
beginning January 2 until June 13, 2001.” Benipayo denied her request
for reconsideration on April 18, 2001,[14] citing COMELEC Resolution No.
3300 dated November 6, 2000, which states in part:
“NOW, THEREFORE, the Commission on Elections by virtue of the
powers conferred upon it by the Constitution, the Omnibus Election Code
and other election laws, as an exception to the foregoing prohibitions, has
RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees
or fill new positions and transfer or reassign its personnel, when
necessary in the effective performance of its mandated functions during
the prohibited period, provided that the changes in the assignment of its
field personnel within the thirty-day period before election day shall be
effected after due notice and hearing.”
Petitioner appealed the denial of her request for reconsideration to the
COMELEC en banc in a Memorandum dated April 23, 2001.[15] Petitioner
also filed an administrative and criminal complaint[16] with the Law
Department[17] against Benipayo, alleging that her reassignment violated
Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No.
3258, Civil Service Memorandum Circular No. 07, s. 001, and other
pertinent administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law Department,
petitioner 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, Borra and Tuason violate the
constitutional provisions on the independence of the COMELEC, as well
as on the prohibitions on temporary appointments and reappointments of
its Chairman and members. Petitioner also assails as illegal her removal
as Director IV of the EID and her reassignment to the Law Department.
Simultaneously, petitioner challenges the designation of Cinco as Officer-
in-Charge of the EID. Petitioner, moreover, questions the legality of the
disbursements made by COMELEC Finance Services Department
Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason
by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo
renewed once again the ad interim appointments of Benipayo as
COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008. [18]
They all took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
Whether or not the instant petition satisfies all the requirements before
this Court may exercise its power of judicial review in
constitutional cases;
Whether or not the assumption of office by Benipayo, Borra and Tuason
on the basis of the ad interim appointments issued by the
President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;
Assuming that the first ad interim appointments and the first assumption
of office by Benipayo, Borra and Tuason are legal, whether or not
the renewal of their ad interim appointments and subsequent
assumption of office to the same positions violate the prohibition
on reappointment under Section 1 (2), Article IX-C of the
Constitution;
Whether or not Benipayo’s removal of petitioner from her position as
Director IV of the EID and her reassignment to the Law
Department is illegal and without authority, having been done
without the approval of the COMELEC as a collegial body;
Whether or not the Officer-in-Charge of the COMELEC’s Finance
Services Department, in continuing to make disbursements in
favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of
jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites
before this Court may exercise its power of judicial review in constitutional
cases. Out of respect for the acts of the Executive department, which is
co-equal with this Court, respondents urge this Court to refrain from
reviewing the constitutionality of the ad interim appointments issued by
the President to Benipayo, Borra and Tuason unless all the four requisites
are present. These are: (1) the existence of an actual and appropriate
controversy; (2) a personal and substantial interest of the party raising the
constitutional issue; (3) the exercise of the judicial review is pleaded at
the earliest opportunity; and (4) the constitutional issue is the lis mota of
the case.[19]
Respondents argue that the second, third and fourth requisites are absent
in this case. Respondents maintain that petitioner does not have a
personal and substantial interest in the case because she has not
sustained a direct injury as a result of the ad interim appointments of
Benipayo, Borra and Tuason and their assumption of office.
Respondents point out that petitioner does not claim to be lawfully entitled
to any of the positions assumed by Benipayo, Borra or Tuason. Neither
does petitioner claim to be directly injured by the appointments of these
three respondents.
Respondents also contend that petitioner failed to question the
constitutionality of the ad interim appointments at the earliest opportunity.
Petitioner filed the petition only on August 3, 2001 despite the fact that the
ad interim appointments of Benipayo, Borra and Tuason were issued as
early as March 22, 2001. Moreover, the petition was filed after the third
time that these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of
petitioner’s reassignment from the EID to the Law Department.
Consequently, the constitutionality of the ad interim appointments is not
the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting
Director, to the Law Department, where she was placed on detail service.
[20] Respondents claim that the reassignment was “pursuant to x x x
Benipayo’s authority as Chairman of the Commission on Elections,
and as the Commission’s Chief Executive Officer.”[21] Evidently,
respondents anchor the legality of petitioner’s reassignment on
Benipayo’s authority as Chairman of the COMELEC. The real issue then
turns on whether or not Benipayo is the lawful Chairman of the
COMELEC. Even if petitioner is only an Acting Director of the EID, her
reassignment is without legal basis if Benipayo is not the lawful
COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman
because he assumed office in accordance with the Constitution, then
petitioner’s reassignment is legal and she has no cause to complain
provided the reassignment is in accordance with the Civil Service Law.
Clearly, petitioner has a personal and material stake in the resolution of
the constitutionality of Benipayo’s assumption of office. Petitioner’s
personal and substantial injury, if Benipayo is not the lawful COMELEC
Chairman, clothes her with the requisite locus standi to raise the
constitutional issue in this petition.
Respondents harp on petitioner’s belated act of questioning the
constitutionality of the ad interim appointments of Benipayo, Borra and
Tuason. Petitioner filed the instant petition only on August 3, 2001, when
the first ad interim appointments were issued as early as March 22, 2001.
However, it is not the date of filing of the petition that determines whether
the constitutional issue was raised at the earliest opportunity. The earliest
opportunity to raise a constitutional issue is to raise it in the pleadings
before a competent court that can resolve the same, such that, “if it is not
raised in the pleadings, it cannot be considered at the trial, and, if not
considered at the trial, it cannot be considered on appeal.” [22] Petitioner
questioned the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition before this Court,
which is the earliest opportunity for pleading the constitutional issue
before a competent body. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a constitutional issue may be
passed upon.[23] There is no doubt petitioner raised the constitutional
issue on time.
Moreover, the legality of petitioner’s reassignment hinges on the
constitutionality of Benipayo’s ad interim appointment and assumption of
office. Unless the constitutionality of Benipayo’s ad interim appointment
and assumption of office is resolved, the legality of petitioner’s
reassignment from the EID to the Law Department cannot be
determined. Clearly, the lis mota of this case is the very constitutional
issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to
the public. The legality of the directives and decisions made by the
COMELEC in the conduct of the May 14, 2001 national elections may be
put in doubt if the constitutional issue raised by petitioner is left
unresolved. In keeping with this Court’s duty to determine whether other
agencies of government have remained within the limits of the
Constitution and have not abused the discretion given them, this Court
may even brush aside technicalities of procedure and resolve any
constitutional issue raised.[24] Here the petitioner has complied with all the
requisite technicalities. Moreover, public interest requires the resolution of
the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a
temporary appointment that is prohibited by Section 1 (2), Article IX-C of
the Constitution, which provides as follows:
“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, three
Members shall hold office for seven years, two Members for five years,
and the last Members 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.” (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be
withdrawn or revoked by the President at her pleasure, and can even be
disapproved or simply by-passed by the Commission on Appointments.
For this reason, petitioner claims that an ad interim appointment is
temporary in character and consequently prohibited by the last sentence
of Section 1 (2), Article IX-C of the Constitution.
Based on petitioner’s theory, there can be no ad interim appointment to
the COMELEC or to the other two constitutional commissions, namely the
Civil Service Commission and the Commission on Audit. The last
sentence of Section 1 (2), Article IX-C of the Constitution is also found in
Article IX-B and Article IX-D providing for the creation of the Civil Service
Commission and the Commission on Audit, respectively. Petitioner
interprets the last sentence of Section 1 (2) of Article IX-C to mean that
the ad interim appointee cannot assume office until his appointment is
confirmed by the Commission on Appointments for only then does his
appointment become permanent and no longer temporary in character.
The rationale behind petitioner’s theory is that only an appointee who is
confirmed by the Commission on Appointments can guarantee the
independence of the COMELEC. A confirmed appointee is beyond the
influence of the President or members of the Commission on
Appointments since his appointment can no longer be recalled or
disapproved. Prior to his confirmation, the appointee is at the mercy of
both the appointing and confirming powers since his appointment can be
terminated at any time for any cause. In the words of petitioner, a Sword
of Damocles hangs over the head of every appointee whose confirmation
is pending with the Commission on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment because it takes
effect immediately and can no longer be withdrawn by the President once
the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its
permanent character. The Constitution itself makes an ad interim
appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next
adjournment of Congress. The second paragraph of Section 16, Article
VII of the Constitution provides as follows:
“The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.” (Emphasis supplied)
T h u s , t h e ad interim appointment remains effective until such
disapproval or next adjournment, signifying that it can no longer be
withdrawn or revoked by the President. The fear that the President can
withdraw or revoke at any time and for any reason an ad interim
appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad
interim appointment is permanent in character. In Summers vs. Ozaeta,
[25] decided on October 25, 1948, we held that:
“x x x an ad interim appointment is one made in pursuance of paragraph
(4), Section 10, Article VII of the Constitution, which provides that the
‘President shall have the power to make appointments during the recess
of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.’ It is an appointment permanent in
nature, and the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent
character. An ad interim appointment is disapproved certainly for a
reason other than that its provisional period has expired. Said
appointment is of course distinguishable from an ‘acting’ appointment
which is merely temporary, good until another permanent appointment is
issued.” (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim
appointment, and thus an ad interim appointment takes effect
immediately. The appointee can at once assume office and exercise, as
a de jure officer, all the powers pertaining to the office. In Pacete vs.
Secretary of the Commission on Appointments,[26] this Court elaborated
on the nature of an ad interim appointment as follows:
“A distinction is thus made between the exercise of such presidential
prerogative requiring confirmation by the Commission on Appointments
when Congress is in session and when it is in recess. In the former, the
President nominates, and only upon the consent of the Commission on
Appointments may the person thus named assume office. It is not so
with reference to ad interim appointments. It takes effect at once.
The individual chosen may thus qualify and perform his function
without loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective ‘until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.’”
Petitioner cites Black’s Law Dictionary which defines the term “ad interim”
to mean “in the meantime” or “for the time being.” Hence, petitioner
argues that an ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered by this Court in
Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,[27]
where we explained that:
“x x x From the arguments, it is easy to see why the petitioner should
experience difficulty in understanding the situation. Private respondent
had been extended several ‘ad interim’ appointments which petitioner
mistakenly understands as appointments temporary in nature. Perhaps, it
is the literal translation of the word ‘ad interim’ which creates such belief.
The term is defined by Black to mean “in the meantime” or “for the time
being”. Thus, an officer ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the absence or temporary
incapacity of its regular incumbent (Black’s Law Dictionary, Revised
Fourth Edition, 1978). But such is not the meaning nor the use intended
in the context of Philippine law. In referring to Dr. Esteban’s
appointments, the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the manner in
which said appointments were made, that is, done by the President
of the Pamantasan in the meantime, while the Board of Regents,
which is originally vested by the University Charter with the power
of appointment, is unable to act. x x x.” (Emphasis supplied)
Thus, the term “ad interim appointment”, as used in letters of appointment
signed by the President, means a permanent appointment made by the
President in the meantime that Congress is in recess. It does not
mean a temporary appointment that can be withdrawn or revoked at any
time. The term, although not found in the text of the Constitution, has
acquired a definite legal meaning under Philippine jurisprudence. The
Court had again occasion to explain the nature of an ad interim
appointment in the more recent case of Marohombsar vs. Court of
Appeals,[28] where the Court stated:
“We have already mentioned that an ad interim appointment is not
descriptive of the nature of the appointment, that is, it is not indicative of
whether the appointment is temporary or in an acting capacity, rather it
denotes the manner in which the appointment was made. In the instant
case, the appointment extended to private respondent by then MSU
President Alonto, Jr. was issued without condition nor limitation as to
tenure. The permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by the Civil Service
Commission Regional Office No. 12. Petitioner’s submission that
private respondent’s ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any
time is clearly untenable. Ad interim appointments are permanent
but their terms are only until the Board disapproves them.”
(Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes
at that moment a government employee and therefore part of the civil
service. He enjoys the constitutional protection that ”[n]o officer or
employee in the civil service shall be removed or suspended except for
cause provided by law.”[29] Thus, an ad interim appointment becomes
complete and irrevocable once the appointee has qualified into office.
The withdrawal or revocation of an ad interim appointment is possible
only if it is communicated to the appointee before the moment he
qualifies, and any withdrawal or revocation thereafter is tantamount to
removal from office.[30] Once an appointee has qualified, he acquires a
legal right to the office which is protected not only by statute but also by
the Constitution. He can only be removed for cause, after notice and
hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in
the Constitution. The first cause is the disapproval of his ad interim
appointment by the Commission on Appointments. The second cause is
the adjournment of Congress without the Commission on Appointments
acting on his appointment. These two causes are resolutory conditions
expressly imposed by the Constitution on all ad interim appointments.
These resolutory conditions constitute, in effect, a Sword of Damocles
over the heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles
over the heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as
provided by law, an appointment or designation in a temporary or acting
capacity can be withdrawn or revoked at the pleasure of the appointing
power.[31] A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. This is the kind of appointment that the
Constitution prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in Brillantes
vs. Yorac,[32] this Court struck down as unconstitutional the designation
by then President Corazon Aquino of Associate Commissioner Haydee
Yorac as Acting Chairperson of the COMELEC. This Court ruled that:
“A designation as Acting Chairman is by its very terms essentially
temporary and therefore revocable at will. No cause need be established
to justify its revocation. Assuming its validity, the designation of the
respondent as Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time and for
whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its
withdrawal.
xxx

The Constitution provides for many safeguards to the independence of
the Commission on Elections, foremost among which is the security of
tenure of its members. That guarantee is not available to the respondent
as Acting Chairman of the Commission on Elections by designation of the
President of the Philippines.”
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the
1935 Constitution, which did not have a provision prohibiting temporary or
acting appointments to the COMELEC, this Court nevertheless declared
unconstitutional the designation of the Solicitor General as acting member
of the COMELEC. This Court ruled that the designation of an acting
Commissioner would undermine the independence of the COMELEC and
hence violate the Constitution. We declared then: “It would be more in
keeping with the intent, purpose and aim of the framers of the Constitution
to appoint a permanent Commissioner than to designate one to act
temporarily.” (Emphasis supplied)
In the instant case, the President did in fact appoint permanent
Commissioners to fill the vacancies in the COMELEC, subject only to
confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of
Congress. They were not appointed or designated in a temporary or
acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs.
Yorac[34] and Solicitor General Felix Bautista in Nacionalista Party vs.
Bautista.[35] The ad interim appointments of Benipayo, Borra and Tuason
are expressly allowed by the Constitution which authorizes the President,
during the recess of Congress, to make appointments that take effect
immediately.
While the Constitution mandates that the COMELEC “shall be
independent”[36], this provision should be harmonized with the President’s
power to extend ad interim appointments. To hold that the independence
of the COMELEC requires the Commission on Appointments to first
confirm ad interim appointees before the appointees can assume office
will negate the President’s power to make ad interim appointments. This
is contrary to the rule on statutory construction to give meaning and effect
to every provision of the law. It will also run counter to the clear intent of
the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the
nomination of officers subject to confirmation by the Commission on
Appointments - did not provide for ad interim appointments. The original
intention of the framers of the Constitution was to do away with ad interim
appointments because the plan was for Congress to remain in session
throughout the year except for a brief 30-day compulsory recess.
However, because of the need to avoid disruptions in essential
government services, the framers of the Constitution thought it wise to
reinstate the provisions of the 1935 Constitution on ad interim
appointments. The following discussion during the deliberations of the
Constitutional Commission elucidates this:
“FR. BERNAS: X x x our compulsory recess now is only 30 days. So
under such circumstances, is it necessary to provide for ad interim
appointments? Perhaps there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this
might present problems in terms of anticipating interruption of
government business, considering that we are not certain of the length
of involuntary recess or adjournment of the Congress. We are certain,
however, of the involuntary adjournment of the Congress which is 30
days, but we cannot leave to conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I
wonder if the Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by
Commissioner Aquino and after conferring with the Committee,
Commissioner Aquino and I propose the following amendment as the last
paragraph of Section 16, the wordings of which are in the 1935
Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER
IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS
SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE
COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT
ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of
Commissioners Aquino and Bengzon, adding a paragraph to the last
paragraph of Section 16? (Silence) The Chair hears none; the
amendment is approved.”[37] (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim
appointing power of the President was for the purpose of avoiding
interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three
constitutional commissions. In his concurring opinion in Guevara vs.
Inocentes,[38] decided under the 1935 Constitution, Justice Roberto
Concepcion, Jr. explained the rationale behind ad interim appointments in
this manner:
“Now, why is the lifetime of ad interim appointments so limited? Because,
if they expired before the session of Congress, the evil sought to be
avoided – interruption in the discharge of essential functions – may
take place. Because the same evil would result if the appointments
ceased to be effective during the session of Congress and before its
adjournment. Upon the other hand, once Congress has adjourned, the
evil aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments.” (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article
VII of the Constitution barely avoided the interruption of essential
government services in the May 2001 national elections. Following the
decision of this Court in Gaminde vs. Commission on Appointments,[39]
promulgated on December 13, 2000, the terms of office of constitutional
officers first appointed under the Constitution would have to be counted
starting February 2, 1987, the date of ratification of the Constitution,
regardless of the date of their actual appointment. By this reckoning, the
terms of office of three Commissioners of the COMELEC, including the
Chairman, would end on February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only
on January 11, 2000 to serve, pursuant to her appointment papers, until
February 15, 2002,[41] the original expiry date of the term of her
predecessor, Justice Bernardo P. Pardo, who was elevated to this Court.
The original expiry date of the term of Commissioner Teresita Dy-Liacco
Flores was also February 15, 2002, while that of Commissioner Julio F.
Desamito was November 3, 2001.[42] The original expiry dates of the terms
of office of Chairperson Demetriou and Commissioners Flores and
Desamito were therefore supposed to fall after the May 2001 elections.
Suddenly and unexpectedly, because of the Gaminde ruling, there were
three vacancies in the seven-person COMELEC, with national elections
looming less than three and one-half months away. To their credit,
Chairperson Demetriou and Commissioner Flores vacated their offices on
February 2, 2001 and did not question any more before this Court the
applicability of the Gaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the
Gaminde case, Chairperson Demetriou stated that she was vacating her
office on February 2, 2001, as she believed any delay in choosing her
successor might create a “constitutional crisis” in view of the proximity of
the May 2001 national elections. Commissioner Desamito chose to file a
petition for intervention[44] in the Gaminde case but this Court denied the
intervention. Thus, Commissioner Desamito also vacated his office on
February 2, 2001.
During an election year, Congress normally goes on voluntary recess
between February and June considering that many of the members of the
House of Representatives and the Senate run for re-election. In 2001,
the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.
[45] Concededly, there was no more time for Benipayo, Borra and Tuason,
who were originally extended ad interim appointments only on March 22,
2001, to be confirmed by the Commission on Appointments before the
May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim
appointments to fill up the three vacancies in the COMELEC, there would
only have been one division functioning in the COMELEC instead of two
during the May 2001 elections. Considering that the Constitution requires
that “all x x x election cases shall be heard and decided in division”, [46] the
remaining one division would have been swamped with election cases.
Moreover, since under the Constitution motions for reconsideration “shall
be decided by the Commission en banc”, the mere absence of one of the
four remaining members would have prevented a quorum, a less than
ideal situation considering that the Commissioners are expected to travel
around the country before, during and after the elections. There was a
great probability that disruptions in the conduct of the May 2001 elections
could occur because of the three vacancies in the COMELEC. The
successful conduct of the May 2001 national elections, right after the
tumultuous EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her
constitutional power to make ad interim appointments prevented the
occurrence of the very evil sought to be avoided by the second paragraph
of Section 16, Article VII of the Constitution. This power to make ad
interim appointments is lodged in the President to be exercised by her in
her sound judgment. Under the second paragraph of Section 16, Article
VII of the Constitution, the President can choose either of two modes in
appointing officials who are subject to confirmation by the Commission on
Appointments. First, while Congress is in session, the President may
nominate the prospective appointee, and pending consent of the
Commission on Appointments, the nominee cannot qualify and assume
office. Second, during the recess of Congress, the President may extend
an ad interim appointment which allows the appointee to immediately
qualify and assume office.
Whether the President chooses to nominate the prospective appointee or
extend an ad interim appointment is a matter within the prerogative of the
President because the Constitution grants her that power. This Court
cannot inquire into the propriety of the choice made by the President in
the exercise of her constitutional power, absent grave abuse of discretion
amounting to lack or excess of jurisdiction on her part, which has not
been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC
is a long-standing practice. Former President Corazon Aquino issued an
ad interim appointment to Commissioner Alfredo E. Abueg.[47] Former
President Fidel V. Ramos extended ad interim appointments to
Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A.
Reyes-Claravall and Manolo F. Gorospe.[48] Former President Joseph
Estrada also extended ad interim appointments to Commissioners Abdul
Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and
Ralph C. Lantion.[49]
The President’s power to extend ad interim appointments may indeed
briefly put the appointee at the mercy of both the appointing and
confirming powers. This situation, however, is only for a short period -
from the time of issuance of the ad interim appointment until the
Commission on Appointments gives or withholds its consent. The
Constitution itself sanctions this situation, as a trade-off against the evil of
disruptions in vital government services. This is also part of the check-
and-balance under the separation of powers, as a trade-off against the
evil of granting the President absolute and sole power to appoint. The
Constitution has wisely subjected the President’s appointing power to the
checking power of the legislature.
This situation, however, does not compromise the independence of the
COMELEC as a constitutional body. The vacancies in the COMELEC are
precisely staggered to insure that the majority of its members hold
confirmed appointments, and not one President will appoint all the
COMELEC members.[50] In the instant case, the Commission on
Appointments had long confirmed four[51] of the incumbent COMELEC
members, comprising a majority, who could now be removed from office
only by impeachment. The special constitutional safeguards that insure
the independence of the COMELEC remain in place.[52] The COMELEC
enjoys fiscal autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and practice. Moreover, the
salaries of COMELEC members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the
President to Benipayo, Borra and Tuason, as COMELEC Chairman and
Commissioners, respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and
the first assumption of office by Benipayo, Borra and Tuason are
constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution, which provides as follows:
“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, three
Members shall hold office for seven years, two Members for five years,
and the last members for three years, without reappointment. X x x.”
(Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the
Commission on Appointments, his ad interim appointment can no longer
be renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this is
particularly true to permanent appointees who have assumed office,
which is the situation of Benipayo, Borra and Tuason if their ad interim
appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the
Commission on Appointments can no longer be extended a new
appointment. The disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on the appointing
authority of the President. The disapproval is a decision on the merits,
being a refusal by the Commission on Appointments to give its consent
after deliberating on the qualifications of the appointee. Since the
Constitution does not provide for any appeal from such decision, the
disapproval is final and binding on the appointee as well as on the
appointing power. In this instance, the President can no longer renew the
appointment not because of the constitutional prohibition on
reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.
A n ad interim appointment that is by-passed because of lack of time or
failure of the Commission on Appointments to organize is another matter.
A by-passed appointment is one that has not been finally acted upon on
the merits by the Commission on Appointments at the close of the
session of Congress. There is no final decision by the Commission on
Appointments to give or withhold its consent to the appointment as
required by the Constitution. Absent such decision, the President is free
to renew the ad interim appointment of a by-passed appointee. This is
recognized in Section 17 of the Rules of the Commission on
Appointments, which provides as follows:
“Section 17. Unacted Nominations or Appointments Returned to the
President. Nominations or appointments submitted by the President of
the Philippines which are not finally acted upon at the close of the session
of Congress shall be returned to the President and, unless new
nominations or appointments are made, shall not again be considered
by the Commission.” (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-
passed appointment can be considered again if the President renews the
appointment.
It is well settled in this jurisdiction that the President can renew the ad
interim appointments of by-passed appointees. Justice Roberto
Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs.
Inocentes[53] why by-passed ad interim appointees could be extended new
appointments, thus:
“In short, an ad interim appointment ceases to be effective upon
disapproval by the Commission, because the incumbent can not continue
holding office over the positive objection of the Commission. It ceases,
also, upon “the next adjournment of the Congress”, simply because the
President may then issue new appointments - not because of implied
disapproval of the Commission deduced from its inaction during the
session of Congress, for, under the Constitution, the Commission may
affect adversely the interim appointments only by action, never by
omission. If the adjournment of Congress were an implied disapproval of
ad interim appointments made prior thereto, then the President could no
longer appoint those so by-passed by the Commission. But, the fact is
that the President may reappoint them, thus clearly indicating that the
reason for said termination of the ad interim appointments is not the
disapproval thereof allegedly inferred from said omission of the
Commission, but the circumstance that upon said adjournment of the
Congress, the President is free to make ad interim appointments or
reappointments.” (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second
paragraph of Section 16, Article VII of the present Constitution on ad
interim appointments was lifted verbatim.[54] The jurisprudence under the
1935 Constitution governing ad interim appointments by the President is
doubtless applicable to the present Constitution. The established practice
under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation
of the well-recognized practice under the 1935 Constitution, interrupted
only by the 1973 Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the
Constitution applies neither to disapproved nor by-passed ad interim
appointments. A disapproved ad interim appointment cannot be revived
by another ad interim appointment because the disapproval is final under
Section 16, Article VII of the Constitution, and not because a
reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can be revived by a
new ad interim appointment because there is no final disapproval under
Section 16, Article VII of the Constitution, and such new appointment will
not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that “[t]he
Chairman and the Commissioners shall be appointed x x x for a term of
seven years without reappointment.” (Emphasis supplied) There are
four situations where this provision will apply. The first situation is where
a n ad interim appointee to the COMELEC, after confirmation by the
Commission on Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether as a member or
as a chairman, because he will then be actually serving more than seven
years. The second situation is where the appointee, after confirmation,
serves a 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 a chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven
years. The third situation is where the appointee is confirmed to serve
the unexpired term of someone who died or resigned, and the appointee
completes the unexpired term. Such person cannot be reappointed,
whether as a member or chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more
than seven years.
The fourth situation is where the appointee has previously served a term
of less than seven 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 Section 1 (2), Article IX-C of the Constitution. This
provision refers to the first appointees under the Constitution whose terms
of office are less than seven years, but are barred from ever being
reappointed under any situation. Not one of these four situations
applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who
has served any term of office as COMELEC member – whether for a full
term of seven years, a truncated term of five or three years, or even
for an unexpired term of any length of time – can no longer be
reappointed to the COMELEC. Commissioner Foz succinctly explained
this intent in this manner:
“MR. FOZ. But there is the argument made in the concurring opinion of
Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the effect
that the prohibition on reappointment applies only when the term or tenure
is for seven years. But in cases where the appointee serves only for less
than seven years, he would be entitled to reappointment. Unless we put
the qualifying words “without reappointment” in the case of those
appointed, then it is possible that an interpretation could be made
later on their case, they can still be reappointed to serve for a total
of seven years.
Precisely, we are foreclosing that possibility by making it clear that
even in the case of those first appointed under the Constitution, no
reappointment can be made.”[55] (Emphasis supplied)
I n Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring
opinion, quoted Nacionalista vs. De Vera[57] that a “[r]eappointment is not
prohibited when a Commissioner has held office only for, say, three or six
years, provided his term will not exceed nine years in all.” This was the
interpretation despite the express provision in the 1935 Constitution that a
COMELEC member “shall hold office for a term of nine years and may not
be reappointed.”
To foreclose this interpretation, the phrase “without reappointment”
appears twice in Section 1 (2), Article IX-C of the present Constitution.
The first phrase prohibits reappointment of any person previously
appointed for a term of seven years. The second phrase prohibits
reappointment of any person previously appointed for a term of five or
three years pursuant to the first set of appointees under the Constitution.
In either case, it does not matter if the person previously appointed
completes his term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the
Commission on Appointments does not constitute a term of office. The
period from the time the ad interim appointment is made to the time it
lapses is neither a fixed term nor an unexpired term. To hold otherwise
would mean that the President by his unilateral action could start and
complete the running of a term of office in the COMELEC without the
consent of the Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on Appointments.
The phrase “without reappointment” applies only to one who has been
appointed by the President and confirmed by the Commission on
Appointments, whether or not such person completes his term of office.
There must be a confirmation by the Commission on Appointments of the
previous appointment before the prohibition on reappointment can apply.
To hold otherwise will lead to absurdities and negate the President’s
power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually
fails to act, for lack of time, on the ad interim appointments first issued to
appointees. If such ad interim appointments can no longer be renewed,
the President will certainly hesitate to make ad interim appointments
because most of her appointees will effectively be disapproved by mere
inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim appointments, a
power intended to avoid disruptions in vital government services. This
Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three constitutional
commissions. The framers of the present Constitution prohibited
reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and
confirmed even if they served for less than seven years. The second is to
insure that the members of the three constitutional commissions do not
serve beyond the fixed term of seven years. As reported in the Journal of
the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored[58]the proposed articles on the three constitutional
commissions, outlined the four important features of the proposed
articles, to wit:
“Mr. Foz stated that the Committee had introduced basic changes in the
common provision affecting the three Constitutional Commissions, and
which are: 1) fiscal autonomy which provides (that) appropriations shall
be automatically and regularly released to the Commission in the same
manner (as) provided for the Judiciary; 2) fixed term of office without
reappointment on a staggered basis to ensure continuity of functions
and to minimize the opportunity of the President to appoint all the
members during his incumbency; 3) prohibition to decrease salaries of the
members of the Commissions during their term of office; and 4)
appointments of members would not require confirmation.” [59] (Emphasis
supplied)
There were two important amendments subsequently made by the
Constitutional Commission to these four features. First, as discussed
earlier, the framers of the Constitution decided to require confirmation by
the Commission on Appointments of all appointments to the constitutional
commissions. Second, the framers decided to strengthen further the
prohibition on serving beyond the fixed seven-year term, in the light of a
former chair of the Commission on Audit remaining in office for 12 years
despite his fixed term of seven years. The following exchange in the
deliberations of the Constitutional Commission is instructive:
“MR. SUAREZ: These are only clarificatory questions, Madam
President. May I call the sponsor’s attention, first of all, to Section 2 (2)
on the Civil Service Commission wherein it is stated: “In no case shall any
Member be appointed in a temporary or acting capacity.” I detect in the
Committee’s proposed resolutions a constitutional hangover, if I may use
the term, from the past administration. Am I correct in concluding that the
reason the Committee introduced this particular provision is to avoid an
incident similar to the case of the Honorable Francisco Tantuico who was
appointed in an acting capacity as Chairman of the Commission on Audit
for about 5 years from 1975 until 1980, and then in 1980, was appointed
as Chairman with a tenure of another 7 years. So, if we follow that
appointment to (its) logical conclusion, he occupied that position for about
12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to
make sure that any member who is appointed to any of the
commissions does not serve beyond 7 years.”[60] (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on
reappointment in this manner:
"MR. MONSOD. If the (Commissioner) 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 that 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."[61] (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there
will be no reappointment of any kind. On the other hand, the prohibition
on temporary or acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that may result in an
appointee’s total term of office exceeding seven years. The evils sought
to be avoided by the twin prohibitions are very specific - reappointment of
any kind and exceeding one’s term in office beyond the maximum period
of seven years.
Not contented with these ironclad twin prohibitions, the framers of the
Constitution tightened even further the screws on those who might wish to
extend their terms of office. Thus, the word “designated” was inserted to
plug any loophole that might be exploited by violators of the Constitution,
as shown in the following discussion in the Constitutional Commission:
“MR. DE LOS REYES: On line 32, between the words “appointed” and
“in”, I propose to insert the words OR DESIGNATED so that the whole
sentence will read: “In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity.”
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee
say?
MR. FOZ: But it changes the meaning of this sentence. The sentence
reads: “In no case shall any Member be appointed in a temporary or
acting capacity.”
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this
amendment is that some lawyers make a distinction between an
appointment and a designation. The Gentleman will recall that in the
case of Commissioner on Audit Tantuico, I think his term exceeded the
constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as
Commissioner on Audit. So, in order to erase that distinction between
appointment and designation, we should specifically place the word so
that there will be no more ambiguity. “In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity.”

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection?
(Silence) The Chair hears none; the amendment is approved.”[62]
The ad interim appointments and subsequent renewals of appointments
of Benipayo, Borra and Tuason do not violate the prohibition on
reappointments because there were no previous appointments that were
confirmed by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The same ad interim
appointments and renewals of appointments will also not breach the
seven-year term limit because all the appointments and renewals of
appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008.[63] Any delay in their confirmation will not
extend the expiry date of their terms of office. Consequently, there is no
danger whatsoever that the renewal of the ad interim appointments of
these three respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The continuing
renewal of the ad interim appointment of these three respondents, for so
long as their terms of office expire on February 2, 2008, does not violate
the prohibition on reappointments in Section 1 (2), Article IX-C of the
Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign
Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director
IV of the EID and reassign her to the Law Department. Petitioner further
argues that only the COMELEC, acting as a collegial body, can authorize
such reassignment. Moreover, petitioner maintains that a reassignment
without her consent amounts to removal from office without due process
and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not possess any
color of title to the office of Chairman of the COMELEC. We have ruled,
however, that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office
for so long as his ad interim appointment remains effective. Under
Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative
Code, the Chairman of the COMELEC is vested with the following power:
“Section 7. Chairman as Executive Officer; Powers and Duties. The
Chairman, who shall be the Chief Executive Officer of the Commission,
shall:
xxx
( 4 ) Make temporary assignments, rotate and transfer personnel in
accordance with the provisions of the Civil Service Law.” (Emphasis
supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly
empowered on his own authority to transfer or reassign COMELEC
personnel in accordance with the Civil Service Law. In the exercise of
this power, the Chairman is not required by law to secure the approval of
the COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999, February 15,
2000 and February 15, 2001, attached as Annexes “X“, “Y” and “Z” to her
Petition, indisputably show that she held her Director IV position in the
EID only in an acting or temporary capacity.[64] Petitioner is not a Career
Executive Service (CES) officer, and neither does she hold Career
Executive Service Eligibility, which are necessary qualifications for
holding the position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service Commission. [65]
Obviously, petitioner does not enjoy security of tenure as Director IV. In
Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this
Court held that:
“As respondent does not have the rank appropriate for the position of
Chief Public Attorney, her appointment to that position cannot be
considered permanent, and she can claim no security of tenure in respect
of that position. As held in Achacoso v. Macaraig:
‘It is settled that a permanent appointment can be issued only ‘to a person
who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed.’ Achacoso did
not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing
authority and ‘at a moment’s notice’, conformably to established
jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. 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 as an exception to
the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to him
cannot be regarded as permanent even if it may be so designated x x x.’”
Having been appointed merely in a temporary or acting capacity, and not
possessed of the necessary qualifications to hold the position of Director
IV, petitioner has no legal basis in claiming that her reassignment was
contrary to the Civil Service Law. This time, the vigorous argument of
petitioner that a temporary or acting appointment can be withdrawn or
revoked at the pleasure of the appointing power happens to apply
squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election
period, as a prohibited act under Section 261 (h) of the Omnibus Election
Code, which provides as follows:
“Section 261. Prohibited Acts. The following shall be guilty of an election
offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public
official who makes or causes any transfer or detail whatever of any officer
or employee in the civil service including public school teachers, within
the election period except upon prior approval of the Commission.”
Petitioner claims that Benipayo failed to secure the approval of the
COMELEC en banc to effect transfers or reassignments of COMELEC
personnel during the election period.[67] Moreover, petitioner insists that
the COMELEC en banc must concur to every transfer or reassignment of
COMELEC personnel during the election period.
Contrary to petitioner’s allegation, the COMELEC did in fact issue
COMELEC Resolution No. 3300 dated November 6, 2000, [68] exempting
the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part:
“WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the
Omnibus Election Code provides as follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election
offense:
xxx
(h) Transfer of officers and employees in the civil service – Any public
official who makes or causes any transfer or detail whatever of any officer
or employee in the civil service including public school teachers, within
the election period except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and
local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign
personnel of the Commission on Elections during the prohibited period in
order that it can carry out its constitutional duty to conduct free, orderly,
honest, peaceful and credible elections;
“NOW, THEREFORE, the Commission on Elections by virtue of the
powers conferred upon it by the Constitution, the Omnibus Election Code
and other election laws, as an exception to the foregoing prohibitions, has
RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees
or fill new positions and transfer or reassign its personnel, when
necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the
assignment of its field personnel within the thirty-day period before
election day shall be effected after due notice and hearing.” (Emphasis
supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and
hearing before any transfer or reassignment can be made within thirty
days prior to election day, refers only to COMELEC field personnel and
not to head office personnel like the petitioner. Under the Revised
Administrative Code,[69] the COMELEC Chairman is the sole officer
specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority
to transfer or reassign COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself
this power because that will mean amending the Revised Administrative
Code, an act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of
the COMELEC as a collegial body. Interpreting Resolution No. 3300 to
require such concurrence will render the resolution meaningless since the
COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300
should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval
from the COMELEC en banc to actually implement such transfer or
reassignment.

The COMELEC Chairman is the official expressly authorized by law to
transfer or reassign COMELEC personnel. The person holding that
office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment
of COMELEC personnel during the election period. Thus, Benipayo’s
order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same
reason, Benipayo’s order designating Cinco Officer-in-Charge of the EID
is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman,
Officer-in-Charge of the Finance Services Department of the Commission
on Elections, did not act in excess of jurisdiction in paying the salaries
and other emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against
petitioner.
SO ORDERED.
Benipayo, Tuason, and Borra were appointed Chairman and
Commissionersnrespectively of the COMELEC by the President when
Congress was not in session. These ad interim appointments were by-
passed by the Commission on Appointments. However, they were
subsequently reappointed by the President to the same positions. Upon
assumption to office, Benipayo transferred Matibag to another
department. Matibag now questions the validity of the appointments on
the grounds that: (1) the ad interim appointments violate ARTICLE IX-C,
Sec. 1, Par. 2 – “In no case shall any member be appointed or designated
in a temporary or acting capacity (Matibag is of the impression that such
ad interim appointments are temporary because they are revocable at the
will of the President); and (2) even assuming they are valid, their re-
appointment violates ARTICLE IX-C, Sec. 1, Par. 2 – “The chairman and
the commissioners shall be appointed xxx for a term of seven years
without reappointment.”
SC: (1) An ad interim appointment is permanent in character (Summers
vs. Ozaeta). The Consitution imposes no condition on the effectivity of an
ad interim appointment and thus an ad interim takes effect immediately.
- The Constitution itself makes ad interim permanent appointment.
- An ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which
the appointment was made. (Marohombsar vs. CA)
(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will
apply: a) where an ad interim appointee to the Comelec, after
confirmation by the Commission on appointment, serves his full seven-
year term;
b) where the appointee, after confirmation, swerves a part of his term and
then resigns before his seven-year term of office ends;
c) where the appointee is confirmed to serve the unexpired term of
someone who died or resigned and the appointee completes the
unexpired term;
d) where the appointee has previously served a term of less than seven
years, and a vacancy arises from death or resignation.
- 2nd issue is of first impression! (not yet asked in the bar)
- In any of these four situations, it presupposes that the appointment had
already been confirmed by the Commission on Appointments. It will not
apply in this case where the appointments were by-passsed.
Q: What if the appointments were actually disapproved and not simply by-
passed, can they still be validly reappointed?
A: No. The disapproval is actually a judgment on the merits of their
qualification. The principle of checks and balances will come into play.
EN BANC
G.R. No. 112045, May 29, 1995
DANILO F.C. RIMONTE, PETITIONER, VS. CIVIL SERVICE
COMMISSION, OFFICE OF THE OMBUDSMAN AND HENRIETTA F.
ROQUE, RESPONDENTS.
DECISION
BELLOSILLO, J.:
Petitioner seeks review on certiorari of CSC Resolution No. 93-2368
dated 29 June 1993[1] which dismissed his appeal from the appointment of
respondent Henrietta F. Roque as Records Officer V, Central
Records Division, Office of the Ombudsman, and CSC Resolution No. 93-
3775 dated 10 September 1993[2] denying his motion for reconsideration.
On 7 November 1989 R.A. No. 6770, "An Act Providing for the Functional
and Structural Organization of the Office of the Ombudsman and for other
purposes," was enacted into law.
On 13 June 1990 Ombudsman Conrado M. Vasquez issued Office Order
No. 90-32 directing the implementation of the "performance appraisal
system," as basis for evaluation of all incumbents. On 14 June 1990, he
issued Office Order No. 90-33 providing for the "General Policy and
Procedural Guidelines in the Placement of Personnel for the New Staffing
Pattern."
Petitioner was then the incumbent Planning Officer III in the Office of the
Ombudsman. On 27 June 1990, petitioner applied for any of the positions
of Records Officer V of the Central Records Division, Chief of Monitoring
and EDP Division, or Administrative Officer V of the Office of the Deputy
Ombudsman for the Armed Forces.
On 1 October 1990, petitioner was appointed to the position of Associate
Graft Investigation Officer III[3] while respondent Henrietta F. Rogue was
appointed Records Officer V or Chief of the Central Records Division,
Office of the Ombudsman.
On 19 November 1990 petitioner filed his appeal and protest against the
appointment of respondent Roque. On 21 December 1990, in a letter to
petitioner, Ombudsman Vasquez denied the appeal thus —
Reference is made to your letter of appeal/reconsideration dated
November 10, 1990 praying that the appointment of Ms. Henrietta F.
Roque as Records Officer V, Central Records Division, be recalled
claiming you^have better qualification than her and that you be appointed
as such in her place.
Please be informed that as appointing authority, I am given ample
discretion to appoint to any vacant position any person who possesses at
least the minimum qualifications thereof. In your appeal, you failed to
show that Ms. Roque is not qualified to hold the contested position.
Accordingly, your appeal is hereby denied.[4]
On 4 January 1991 petitioner appealed from the decision of the,
Ombudsman to the Civil Service Commission alleging that the
Ombudsman erred (a) in holding that being the appointing authority he
was given ample discretion to appoint to any vacant position any person
who possesses at least the minimum qualifications; and, (b) in holding
that petitioner failed to show that respondent Roque was not qualified to
hold the contested position.
On 17 June 1993 respondent Roque submitted to respondent
Commission her personal data and other documents to show that she
was qualified for the position of Records Officer V to which she was
appointed.
On 29 June 1993, respondent Commission issued Resolution No. 93-
2368[5] dismissing the appeal of petitioner on the basis of pronouncements
of this Court holding that an appointment is essentially discretionary on
the part of the appointing authority provided the appointee is qualified.
Respondent Commission also found that petitioner did not dispute the
qualification of respondent Roque to the contested position.
Petitioner moved to reconsider the resolution of respondent Commission
alleging that the latter erred: (a) in applying the doctrine laid down in
Luego v. Civil Service Commission [6] to the appeal of petitioner; (b) in
admitting the letter and documents submitted by respondent Roque in
support of her claim that she possessed the experience requirement for
the position of Records Officer V; and, (c) in ruling that respondent Roque
was qualified for appointment to the contested position.
On 10 September 1993, respondent Commission issued Resolution No.
93-3775[7] stating that the grounds raised by petitioner had been
thoroughly discussed and resolved in Resolution No. 93-2368 dated 29
June 1993 and that it had already been established that respondent
Roque met the minimum requirements for the. position.
Petitioner comes to us imputing error to respondent Civil Service
Commission in not finding that the appointment by the Ombudsman of
respondent Roque as Records Officer V was not in accord with the legal
requirements of R.A. 6656 and the Rules on Government Reorganization,
and in finding respondent Roque qualified for the position of Records
Officer V.
We shall discuss jointly the issues raised by petitioner as they are
interrelated.
Petitioner contends that there were flagrant violations of the
reorganization law and rules attendant to the appointment of respondent
Roque to the post of Records Officer V. Petitioner also submits that the
Final Ranking Form[8] for the position of Records Officer V signed by the
members of the Central* Placement Committee shows certain violations,
i.e., (a) no incumbent Ombudsman personnel was considered for the
contested position except respondent Roque despite his application for
the position; (b) respondent Roque was considered and assessed tor the
contested position on the basis of an "ASSUMED" performance rating
given by the Central Placement Committee; and, (c) the percentage
weight of the criteria for evaluation used by the Central Placement
Committee was different from those prescribed under Office Order No.
90-32.[9] Petitioner alleges that respondent Civil Service Commission
failed to take into account these violations when it affirmed the
appointment of respondent Roque. Petitioner insists that he is more
qualified than Roque in terms of performance which is one of the criteria
provided by the reorganization law, and that while the appointing authority
has discretion in the appointment of its personnel such discretion is not
absolute but must yield to the intent and criteria laid down by law.
The arguments of petitioner cannot be sustained.
The Civil Service Commission is the single arbiter of all .contests relating
to civil service; as such its judgments are unappealable and subject only
to the certiorari jurisdiction of this Court,[10] at least until 1 June 1995 when
Rev. Adm. Circ. No. 1-95, amending Rev. Circ. No. 1-91, shall take effect.
[11] In view thereof, this Court cannot engage in a review of facts found or
even of law as interpreted by the agency concerned unless the supposed
errors of fact or law are so serious and prejudicial as to amount to a grave
abuse of discretion. Moreover, erroneous findings and conclusions do not
render the respondent Commission vulnerable to the corrective writ of
certiorari, for where the Commission has jurisdiction over the case, even if
its findings are not correct, they would at most constitute errors of law and
not an abuse of discretion correctible by certiorari.
After a review of the questioned CSC Resolutions Nos. 93-2368 and 93-
3775, this Court fails to find any grave abuse of discretion committed by
respondent Civil Service Commission in the issuance thereof to justify a
grant of the writ prayed for.
The qualification standards for the position of Records Officer V are:
Education - a Bachelor's degree with training in Records Management;
Experience - three (3) years of responsible experience in supervising
personnel engaged in records management activities, developing work
standards and efficient methods and procedures in the maintenance of
active continuing program of records disposition and preservation or other
related work; Eligibility - CS Professional.[12]
In order to comparatively assess the relative fitness and competence of
employees considered for placement, Office Order No. 90-32[13] issued 13
June 1990 by Ombudsman Vasquez provided for the following criteria: (a)
performance for the last two years or from the date of effectivity of
appointment until the present, 65%; (b) manifested personality attributes,
15%; (c) education and training, 10%; and, (d) experience and
outstanding accomplishments, 10%. Office Order No. 90-33 issued on 14
June 1990 by the Ombudsman provides that the latter shall be assisted
by a Central Placement Committee created by Office Order 90-27 in the
selection of personnel to be recommended in the Central Office of the
Ombudsman[14]. It is worthy to emphasize at this point that even the
internal rules of the Office of the Ombudsman in the selection and
appointment of its personnel confer upon the Ombudsman the ultimate
discretionary power to appoint and that the evaluation or selection of
personnel by the Central Placement Committee is merely
recommendatory.
Respondent Civil Service Commission found from the records that
respondent Roque possessed the minimum qualifications required for the
position of Records Officer V to which she was appointed. She graduated
with' a degree of Bachelor of Business Administration. She has the
General Clerical, Stenographer and Career Service Professional
eligibilities. Her work experience also shows she is qualified for the
position.[15]
These findings are not refuted by petitioner. He claims however that his
performance rating is outstanding being placed at 65/65 [16] which is and 93-3775 dated 10 September 1993 are AFFIRMED.
equivalent to 100%, while the performance rating of respondent Roque
given by the Central. Administrative Bureau is 2.4/3[17] which is equivalent SO ORDERED.
to .80 or 80%, and was indicated as an assumed rating only because
none was given by her immediate supervisor. Petitioner banks oh this
seeming disparity in their performance ratings, with him obtaining a higher
rating, to justify the nullification of the appointment of respondent Roque.

The head of an agency who is the appointing power is the one most
knowledgeable to decide who can best perform the functions of the office.
Appointment is an essentially discretionary power and must be performed
by the officer vested with such power according to his best lights, the only
condition being that the appointee should posses 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. Indeed, this is a prerogative of the appointing authority which
he can alone can decide.[18] The choice of an appointee from among those
who posses the required qualifications is a political and administrative
decision calling for considerations of wisdom, convenience, utility and the
interest of the service which can best be made by the head of the office
concerned, the person most familiar with the organizational structure and
environmental circumstances within which the appointee must function.[19]
Hence, when Ombudsman Vasquez appointed respondent Roque to the
position of Record Officer V, his act in doing so confirmed Roque's
performance rating which can be understood to be at least very
satisfactory. From the vantage point of the Ombudsman, she is the
person who can best fill the post and discharge its function. We cannot
argue against this proposition.

Since there is no doubt that Roque posseses the minimum qualifications

for the position, respondent Civil Service Commission acted well within its
discretion in the exercise of its jurisdiction in attesting the appointment of
Roque. As long as the appointee is qualified the Civil Service Commission
has no choice but to attest to and respect the appointment even if it be
proved that there are others with superior credentials. The law limits the
Commission's authority only to whether or not the appointees possess the
legal qualifications and the appropriate civil service eligibility, nothing
else. If they do then the appointments are approved because the
Commission cannot exceed its power by substituting its will for that of the
appointing authority[20]. Neither can we.

WHEREFORE, the petition is DISMISSED and the Resolutions of

respondent Civil Service Commission Nos. 93-2368 dated 29 June 1993
EN BANC
G.R. No. 92573, June 03, 1991
ALEX A. ABILA, PETITIONER, VS. CIVIL SERVICE COMMISSION AND
FLORENTINA E. ELERIA, RESPONDENTS.
[G.R. NO. 92867. JUNE 3, 1991]
QUEZON CITY, REPRESENTED BY THE HONORABLE BRIGIDO R.
SIMON, JR., PETITIONER, VS. CIVIL SERVICE COMMISSION AND
FLORENTINA E. ELERIA, RESPONDENTS.
RESOLUTION
FELICIANO, J.:
On 1 September 1987, Amado Villafuerte retired from his position as
Administrative Officer IV in the Health Department of the City Government
of Quezon City. Then Quezon City Officer-in-Charge Brigido Simon, Jr.
appointed petitioner Alex Abila as Villafuerte's successor. Petitioner Abila
who had theretofore been the Acting Assistant Civil Security Officer, Civil
Intelligence and Security Department of the Quezon City Government,
assumed the Administrative Officer IV position on 2 December 1987.
A day earlier, private respondent Florentina Eleria, Administrative Officer
III of the Health Department, Quezon City Government, filed a protest with
the Merit System Protection Board ("Board") in respect of Abila's
appointment. The Board indorsed the protest to the new Quezon City
Officer-in-Charge, Reynaldo Bernardo, who rendered a decision
dismissing the protest.
Private respondent Eleria appealed to the Board. On 27 October 1988,
the Board promulgated a decision revoking petitioner Abila's appointment
and directing the Quezon City Officer-in-Charge or Mayor to appoint
private respondent Eleria in lieu of petitioner Abila. The Board found that
both petitioner Abila and private respondent Eleria met the minimum
eligibility and education requirements for Administrative Officer IV, but
ruled that respondent Eleria had the edge in terms of rank and experience
as an Administrative Officer. The Board also held that respondent Eleria
was holding a position next in rank to that of the vacancy, which
circumstance, according to the Board, under Section 4 of the Civil Service
Commission Resolution No. 83-343, gave her "promotional priority" over
petitioner.
Petitioner Abila appealed to the Civil Service Commission
("Commission"). The Commission affirmed in toto the Board's decision
and resolution dated 21 November 1989. Petitioner moved for
reconsideration, without success.
Petitioner is now before this Court on certiorari. He contends that the
respondent Commission, having verified that both petitioner and private
respondent were legally qualified to fill the vacancy, should not have
proceeded to comparing the parties' qualifications and choosing the
person that it believed to be the appropriate appointee. Those functions,
petitioner urges, belong to the City Mayor as part of his appointing power
and cannot be appropriated for itself by the respondent Commission.
In a Resolution dated 19 April 1990, the Court granted a temporary
restraining order enjoining respondent Commission from implementing its
resolutions.
The Quezon City Government, represented by its elected Mayor, Brigido
Simon, Jr., filed an identical Petition with this Court, docketed as G.R. No.
92867, seeking annulment of respondent Commission's resolution and
upholding the validity of the appointment of petitioner Abila on
substantially the same grounds pleaded by the latter.
In a Resolution dated 26 July 1990, the Court ordered consolidation of the
two (2) cases for their more convenient disposition.
The recurring issue posed in this case is whether the respondent
Commission has authority to substitute its own judgment for that of the
official authorized by law to make an appointment to the government
service, in the matter of weighing an appointee's qualifications and fitness
for a position, after it has been shown that the appointee possesses the
minimum qualifications prescribed for the position.
In a long line of cases,[1] the Court has held that respondent Commission
has no such authority, the power of appointment, which is essentially
discretionary, being vested by law in the head of the office concerned.
The head of the office is the person on the spot. He occupies the ideal
vantage point from which to identify and designate the individual who can
best fill the post and discharge its functions in the government agency he
heads. The choice of an appointee from among those who possess the
required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of service
which can best be made by the head of the office concerned, the person
most familiar with the organizational structure and environmental
circumstances within which the appointee must function.
I n Lapinid v. Civil Service Commission (supra), the Court through Mr.
Justice Cruz, stressed:
"We declare once again, and let us hope for the last time, that the Civil
Service Commission has no power of appointment except over its own
personnel. Neither does it have the authority to review the appointments
made by other offices except only to ascertain if the appointee possesses
the required qualifications. The determination of who among aspirants
with the minimum statutory qualifications should be preferred belongs to
the appointing authority and not the Civil Service Commission. It cannot
disallow an appointment because it believes another person is better
qualified and much less can it direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court cannot
compel. While the act of appointment may in proper cases be the subject
o f mandamus, the selection itself of the appointee -- taking into account
the totality of his qualifications, including those abstract qualities that
define his personality -- is the prerogative of the appointing authority.
This is a matter addressed only to the discretion of the appointing
authority. It is a political question that the Civil Service Commission has
no power to review under the Constitution and the applicable laws."[2]
The Commission, the Court said in Chang v. Civil Service Commission,[3]
“is not a co-manager or surrogate administrator of government offices and
agencies."
In the case at bar, the respondent Commission itself acknowledged that
both petitioner Abila and respondent Eleria are legally qualified for the
position in question.[4] Having made the determination, the Commission
had exhausted its powers and may not act any further except to affirm the
validity of petitioner's appointment. More specifically, the Commission
had no authority to revoke petitioner's appointment because the
Commission believed that private respondent Eleria was better qualified
for the position involved; the Commission's acts in this respect constituted
an encroachment upon a discretionary authority vested by law in the
Quezon City Mayor and not in the Commission.
The Court notes that a vacant position in the Civil Service may be filled by
promotion, transfer of present employees, reinstatement and re-
employment or appointment of outsiders who have the necessary
eligibility.[5] The next-in-rank rule invoked by respondent Commission to
justify its choice of respondent Eleria over petitioner Abila, applies only
where a vacancy is filled by promotion, a process which denotes a scalar
ascent of an officer to another position higher either in rank or salary. A
promotion involves a situation quite different from the situation in the case
at bar where the appointment of petitioner Abila was effected through
lateral transfer from a position in one department of the city government
to a position of greater responsibility in another department of the same
government.[6] In Medenilla v. Civil Service Commission,[7] the Court very
recently stressed that:
"x x x We have already held in cases subsequent to Millares that the next-
in-rank rule is not absolute; it only applies in cases of promotion (see
Pineda v. Claudio, 28 SCRA 34 [1969]). And even in promotions, it can
be disregarded for sound reasons made known to the next-in-rank. The
appointing authority, under the Civil Service Law, is allowed to fill
vacancies by promotion, transfer of present employees, reinstatement,
reemployment, and appointment of outsiders who have appropriate civil
service eligibility, not necessarily in that order (see Pineda v. Claudio,
supra; Luego v. Civil Service Commission, 143 SCRA 327 [1986]). There
is no legal fiat that a vacancy must be filled only by promotion; the
appointing authority is given wide discretion to fill a vacancy from among
the several alternatives provided for by law." (Underscoring supplied)
The Court further notes that even if the vacancy here had been filled by
promotion rather than by lateral transfer, the concept of "next in rank"
does not import any mandatory or peremptory requirement that the
person next in rank must be appointed to the vacancy. What Section 19
(3) of P.D. No. 807, the Civil Service Law, provides is that if a vacancy is
filled by a promotion, the person holding the position next in rank thereto
"shall be considered for promotion."[8]
In Taduran v. Civil Service Commission,[9] the Court construed that phrase
to mean that the person next in rank "would be among the first to be
considered for the vacancy, if qualified." [10] In Santiago, Jr. v. Civil Service
Commission,[11] the Court elaborated the import of the rule in the following
manner:
"One who is next-in-rank is entitled to preferential consideration for
promotion to the higher vacancy but it does not necessarily follow that he
and no one else can be appointed. The rule neither grants a vested right
to the holder nor imposes a ministerial duty on the appointing authority to
promote such person to the next higher position. x x x"[12]
It appears to the Court that Section 4 of respondent Commission's
Resolution No. 83-343 which provided that:
"Rule on Promotion
xxx xxx xxx
Section 4. An employee who holds a next in rank position who is
competent and qualified, possesses an appropriate civil service eligibility
and meets the other conditions for promotion shall be promoted to the
higher position, when it becomes vacant." (Underscoring supplied)
has been superseded by Section 2 of Rule 3 of the respondent
Commission's subsequent Resolution No. 89-779 which reads as follows:
"B. Rules on Protest Cases
xxx xxx xxx
Rule III. Procedure in Filling Vacancies
xxx xxx xxx
Section 2. Positions in the Second Level. -- When a vacancy occurs in
the second level of the career service as herein defined, the employees in
the department who occupy the next lower positions in the occupational
group under which the vacant position is classified, and in other
functionally related occupational groups, who are competent and qualified
and with appropriate civil service eligibility shall be considered for
appointment to the vacancy." (Underscoring supplied)
When, in the exercise of its rule-making power, it promulgated Section 4
of its earlier Resolution No. 83-343, the Commission clearly exceeded the
scope of its statutory authority since the Civil Service law itself, in Section
19 (3) of P.D. No. 807, had simply provided that persons next in rank who
are qualified "shall be considered for promotion." The current regulation
found in Section 2 of Rule III of the Commission's Resolution No. 89-779
is, fortunately, more consistent with the Commission's enabling statute.
Finally, respondent Commission will find no comfort in Meram v. Edralin[13]
which it cites. In that case, the Court affirmed the appointment of the next
in rank "because the original appointee's appointment was made in
consideration of the political, ethnic, religious or blood ties totally against
the very purpose behind the establishment of professionalism in the civil
service."[14] In the case at bar, respondents have not asserted the
existence of any circumstances, such as those in Meram, which would
have warranted intervention by the Commission to correct an arbitrary
and merely capricious exercise of power by the appointing authority.
ACCORDINGLY, the Court Resolved to TREAT respondents’ Comments
as their Answers to GRANT due course to the Petition for Certiorari and
to ANNUL and SET ASIDE the Resolutions of the respondent Civil
Service Commission Nos. 89-869 (21 November 1989) and 90-240 (5
March 1990), respectively. The Temporary Restraining Order dated 19
April 1990 is hereby MADE PERMANENT.
ABILA VS CSC
When Amado Villafuerte retired from his position as Admin Officer IV in
DOH-Qeuzon City, the Officer-in-Charge appointed Alex Abila, who had
been the Acting Asst. Civil Security Officer, as his successor. This was
questioned by Florentina Aleria, the Admin Officer III of DOH.

SC: A vacant position in the CSC may be filled by promotion, transfer of

present employees, reinstatement, re-employment or appointment of
outsiders who have the necessary eligibility. The next in rank rule invoked
by the CSC to justify its choice of Eleria over Abila APPLIES ONLY when
a vacancy is filled by promotion, a process which denotes a scalar ascent
of an officer to another position higher in rank or salary. Even of the
vacancy here had been filled by promotion rather by a lateral transfer, the
concept of next in rank rule does not import any mandatory or preemptory
requirement that the person next in rank must be appointed to the
vacancy. What the Civil Service Law provides is that if the vacancy is
filled up by promotion, the person holding the position next in rank thereto
shall be considered for promotion. The one who is next in rank is only
entitled to preferential consideration. The next in rank rule is not absolute.
Even in promotion, it can be disregarded.
EN BANC
G.R. No. 104732, June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO,
DOMINGO A. JADLOC, CARLITO T. CRUZ AND MANUEL P. REYES,
PETITIONERS, VS. HON. FRANKLIN M. DRILON, EXECUTIVE
SECRETARY, AND RICHARD J. GORDON, RESPONDENTS.
DECISION
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, [1] otherwise known
as the "Bases Conversion and Development Act of 1992," under which
respondent Mayor Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to
prevent useless and unnecessary expenditures of public funds by way of
salaries and other operational expenses attached to the office x x x x” [2]
Paragraph (d) reads –
"(d) Chairman/Administrator – The President shall appoint a professional
manager as administrator of the Subic Authority with a compensation to
be determined by the Board subject to the approval of the Secretary of
Budget, who shall be the ex officio chairman of the Board and who shall
serve as the chief executive officer of the Subic Authority: Provided,
however, That for the first year of its operations from the effectivity of this
Act, the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority" (italization
supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at
Subic, Zambales, and officers and members of the Filipino Civilian
Employees Association in U. S. Facilities in the Philippines, maintain that
the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes
on the following constitutional and statutory provisions: (a) Sec. 7, first
par., Art. IX-B, of the Constitution, which states that “[n]o elective official
shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure,”[3] because the City Mayor of
Olongapo City is an elective official and the subject posts are public
offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he
President shall xxx x appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint",[4] since it was Congress through the
questioned proviso and not the President who appointed the Mayor to the
subject posts;[5] and, (c) Sec. 261, par. (g), of the Omnibus Election Code,
which says:
"Sec. 261. Prohibited Acts. – The following shall be guilty of an election
offense: x x x x (g) Appointment 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, (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 of 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 case of urgent need:
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 x x x x"
for the reason that the appointment of respondent Gordon to the subject
posts made by respondent Executive Secretary on 3 April 1992 was
within the prohibited 45-day period prior to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A.
7227 which states, "Provided, however, That for the first year of its
operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer
of the Subic Authority," violates the constitutional proscription against
appointment or designation of elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
"No elective official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure.
“Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in
the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries.”
The section expresses the policy against the concentration of several
public positions in one person, so that a public officer or employee may
serve full-time with dedication and thus be efficient in the delivery of
public services. It is an affirmation that a public office is a full-time job.
Hence, a public officer or employee, like the head of an executive
department described in Civil Liberties Union v. Executive Secretary, G.R.
No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C.
Juico, as Secretary of Agrarian Reform, G.R. No. 83815,[6] "x x x x should
be allowed to attend to his duties and responsibilities without the
distraction of other governmental duties 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 x x x x"
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea
really is to prevent a situation where a local elective official will work for
his appointment in an executive position in government, and thus neglect
his constituents x x x x"[7]
In the case before us, the subject proviso directs the President to appoint
an elective official, i.e., the Mayor of Olongapo City, to other government
posts (as Chairman of the Board and Chief Executive Officer of SBMA).
Since this is precisely what the constitutional proscription seeks to
prevent, it needs no stretching of the imagination to conclude that the
proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here,
the fact that the expertise of an elective official may be most beneficial to
the higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the
appointment of a local elective official to another post if so allowed by law
or by the primary functions of his office.[8] But, the contention is fallacious.
Section 94 of the LGC is not determinative of the the constitutionality of
Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the
fundamental law of the land. Moreover, since the constitutionality of Sec.
94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a
practice otherwise unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another
post if allowed by law or by the primary functions of his office, ignores the
clear-cut difference in the wording of the two (2) paragraphs of Sec. 7,
Art. IX-B, of the Constitution. While the second paragraph authorizes
holding of multiple offices by an appointive official when allowed by law or
by the primary functions of his position, the first paragraph appears to be
more stringent by not providing any exception to the rule against
appointment or designation of an elective official to other government
posts, except as are particularly recognized in the Constitution itself, e.g.,
the President as head of the economic and planning agency; [9] the
Vice-President, who may be appointed Member of the Cabinet;[10] and, a
member of Congress who may be designated ex officio member of the
Judicial and Bar Council.[11]
The distinction between the first and second paragraphs of Sec. 7, Art. IX-
B, was not accidental when drawn, and not without reason. It was
purposely sought by the drafters of the Constitution as shown in their
deliberation, thus –
"MR. MONSOD. In other words, what the Commissioner is saying, Mr.
Presiding Officer, is that the prohibition is more strict with respect to
elective officials, because in the case of appointive officials, there may be
a law that will allow them to hold other positions.
"MR. FOZ. Yes. I suggest we make that difference, because in the case
of appointive officials, there will be certain situations where the law should
allow them to hold some other positions.”[12]
The distinction being clear, the exemption allowed to appointive officials in
the second paragraph cannot be extended to elective officials who are
governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the
position of Mayor of Olongapo City, hence, an excepted circumstance,
citing Civil Liberties Union v. Executive Secretary,[13] where we stated that
the prohibition against the holding of any other office or employment by
the President, Vice-President, Members of the Cabinet, and their deputies
or assistants during their tenure, as provided in Sec. 13, Art. VII, of the
Constitution, does not comprehend additional duties and functions
required by the primary functions of the officials concerned, who are to
perform them in an ex officio capacity as provided by law, without
receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not
contemplate making the subject SBMA posts as ex officio or automatically
attached to the Office of the Mayor of Olongapo City without need of
appointment. The phrase "shall be appointed" unquestionably shows the
intent to make the SBMA posts appointive and not merely adjunct to the
post of Mayor of Olongapo City. Had it been the legislative intent to make
the subject positions ex officio, Congress would have, at least, avoided
the word "appointed" and, instead, "ex officio" would have been used.[14]
Even in the Senate deliberations, the Senators were fully aware that
subject proviso may contravene Sec.7, first par., Art. IX-B, but they
nevertheless passed the bill and decided to have the controversy
resolved by the courts. Indeed, the Senators would not have been
concerned with the effects of Sec. 7, first par., had they considered the
SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject
proviso was stated, Senator Rene Saguisag remarked that "if the
Conference Committee just said 'the Mayor shall be the Chairman’, then
that should foreclose the issue. It is a legislative choice.” [15] The Senator
took a view that the constitutional proscription against appointment of
elective officials may have been sidestepped if Congress attached the
SBMA posts to the Mayor of Olongapo City instead of directing the
President to appoint him to the post. Without passing upon this view of
Senator Saguisag, it suffices to state that Congress intended the posts to
be appointive, thus nibbling in the bud the argument that they are ex
officio.
The analogy with the position of Chairman of the Metro Manila Authority
made by respondents cannot be applied to uphold the constitutionality of
the challenged proviso since it is not put in issue in the present case. In
the same vein, the argument that if no elective official may be appointed
or designated to another post then Sec. 8, Art. IX-B, of the Constitution
allowing him to receive double compensation[16] would be useless, is non
sequitur since Sec. 8 does not affect the constitutionality of the subject
proviso. In any case, the Vice-President for example, an elective official
who may be appointed to a cabinet post under Sec. 3, Art. VII, may
receive the compensation attached to the cabinet position if specifically
authorized by law.
Petitioners also assail the legislative encroachment on the appointing
authority of the President. Section 13, par. (d), itself vests in the President
the power to appoint the Chairman of the Board and the Chief Executive
Officer of SBMA, although he really has no choice under the law but to
appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by
the person or persons having authority therefor, to discharge the duties of
some office or trust,”[17] or "[t]he selection or designation of a person, by
the person or persons having authority therefor, to fill an office or public
function and discharge the duties of the same.” [18] In his treatise,
Philippine Political Law,[19] Senior Associate Justice Isagani A. Cruz
defines appointment as "the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power
necessarily exercises a discretion. According to Woodbury, J.,[20] "the
choice of a person to fill an office constitutes the essence of his
appointment,”[21] and Mr. Justice Malcolm adds that an "[a]ppointment to
office is intrinsically an executive act involving the exercise of
discretion."[22] In Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court[23] we held:
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.[24]
In the case at bar, while Congress willed that the subject posts be filled
with a presidential appointee for the first year of its operations from the
effectivity of R.A. 7227, the proviso nevertheless limits the appointing
authority to only one eligible, i.e., the incumbent Mayor of Olongapo City.
Since only one can qualify for the posts in question, the President is
precluded from exercising his discretion to choose whom to appoint. Such
supposed power of appointment, sans the essential element of choice, is
no power at all and goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of
the officer during the first year of operations of SBMA, i.e., he must be the
Mayor of Olongapo City, it is manifestly an abuse of congressional
authority to prescribe qualifications where only one, and no other, can
qualify. Accordingly, while the conferment of the appointing power on the
President is a perfectly valid legislative act, the proviso limiting his choice
to one is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all
throughout his tenure or during his incumbency, he may however resign
first from his elective post to cast off the constitutionally-attached
disqualification before he may be considered fit for appointment. The
deliberation in the Constitutional Commission is enlightening:
"MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of
the word "term" with TENURE.
"MR. FOZ. The effect of the proposed amendment is to make
possible for one to resign from his position.
"MR. DAVIDE. Yes, we should allow that prerogative.
“MR. FOZ. Resign from his position to accept an executive position.
“MR. DAVIDE. Besides, it may turn out in a given case that because of,
say, incapacity, he may leave the service, but if he is prohibited from
being appointed within the term for which he was elected, we may be
depriving the government of the needed expertise of an individual.”[25]
Consequently, as long as he is an incumbent, an elective official remains
ineligible for appointment to another public office.
Where, as in the case of respondent Gordon, an incumbent elective
official was, notwithstanding his ineligibility, appointed to other
government posts, he does not automatically forfeit his elective office nor
remove his ineligibility imposed by the Constitution. On the contrary, since
an incumbent elective official is not eligible to the appointive position, his
appointment or designation thereto cannot be valid in view of his
disqualification or lack of eligibility. This provision should not be confused
with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member
of the House of Representatives may hold any other office or employment
in the Government x x x during his term without forfeiting his seat x x x x"
The difference between the two provisions is significant in the sense that
incumbent national legislators lose their elective posts only after they
have been appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be appointed,
thus running the risk of losing the elective post as well as not being
appointed to the other post. It is therefore clear that ineligibility is not
directly related with forfeiture of office. "x x x x The effect is quite different
where it is expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to incapacitate the
incumbent of an office from accepting or holding a second office (State ex
rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v
Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment
to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW
262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272,
232 P 388, 40 ALR 941)."[26] "Where the constitution or statutes declare
that persons holding one office shall be ineligible for election or
appointment to another office, either generally or of a certain kind, the
prohibition has been held to incapacitate the incumbent of the first office
to hold the second so that any attempt to hold the second is void (Ala. -
State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)."[27]
As incumbent elective official, respondent Gordon is ineligible for
appointment to the position of Chairman of the Board and Chief Executive
Officer of SBMA; hence, his appointment thereto pursuant to a legislative
act that contravenes the Constitution cannot be sustained. He however
remains Mayor of Olongapo City, and his acts as SBMA official are not
necessarily null and void; he may be considered a de facto officer, "one
whose acts, though not those of a lawful officer, the law, upon principles
of policy and justice, will hold valid so far as they involve the interest of
the public and third persons, where the duties of the office were exercised
x x x x under color of a known election or appointment, void because the
officer was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or irregularity in
its exercise, such ineligibility, want of power or defect being unknown to
the public x x x x [or] under color of an election, or appointment, by or
pursuant to a public unconstitutional law, before the same is adjudged to
be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell
[N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am.
Rep., 323)."[28]
Conformably with our ruling in Civil Liberties Union, any and all per diems,
allowances and other emoluments which may have been received by
respondent Gordon pursuant to his appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now evident,
other matters affecting the legality of the questioned proviso as well as
the appointment of said respondent made pursuant thereto need no
longer be discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero
Laurel which he expressed in the floor deliberations of S.B. 1648,
precursor of R.A. 7227, when he articulated -
"x x x x (much) as we would like to have the present Mayor of Olongapo
City as the Chief Executive of this Authority that we are creating; (much)
as I, myself, would like to because I know the capacity, integrity, industry
and dedication of Mayor Gordon; (much) as we would like to give him this
terrific, burdensome and heavy responsibility, we cannot do it because of
the constitutional prohibition which is very clear. It says: ‘No elective
official shall be appointed or designated to another position in any
capacity.’"[29]
For, indeed, "a Constitution must be firm and immovable, like a mountain
amidst the strife of storms or a rock in the ocean amidst the raging of the
waves.”[30] One of the characteristics of the Constitution is permanence,
i.e., "its capacity to resist capricious or whimsical change dictated not by
legitimate needs but only by passing fancies, temporary passions or
occasional infatuations of the people with ideas or personalities x x x x
Such a Constitution is not likely to be easily tampered with to suit political
expediency, personal ambitions or ill-advised agitation for change.”[31]
Ergo, under the Constitution, Mayor Gordon has a choice. We have no
choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which
states: “x x x Provided, however, That for the first year of its operations
from the effectivity of this Act, the Mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of the Subic
Authority," is declared unconstitutional; consequently, the appointment
pursuant thereto of the Mayor of Olongapo City, respondent Richard J.
Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments received by
respondent Gordon, if any, as such Chairman and Chief Executive Officer
may be retained by him, and all acts otherwise legitimate done by him in
the exercise of his authority as officer de facto of SBMA are hereby
UPHELD.
SO ORDERED.
FLORES VS DRILON
When the US-Phils treaty expired, Congress enacted RA 7227, creating
the SBMA. The Charter provided that for the first year of operation, the
President shall appoint the Mayor of Olongapo City as head chairman and
CEO of SBMA. Thus, then Mayor Gordon assumed the positions.
SC: The Charter violates:
1. Art IX-B, Section 7, part 1: “No elective official shall be eligible for
appointment or designation in any capacity to any public office or position
during his tenure.” This prohibits elective officers from being appointed or
designated to any public office. The only exception is when the public
office is to be held in exofficio capacity.
2. Doctrine of Separation of Powers
Congress encroached on the power of the President to appoint. The
President was not given an option at all. The Appointment was limited to
the Mayor of Olongapo. The heart or core of appointment is the power to
choose. Also, the nature of appointment is discretionary, not a ministerial
act. Hence, when the Congress clothes the President with the power to
appoint an officer, it 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 on whom to appoint.
[G.R. No. 123708. June 19, 1997]
CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND
GAMING CORPORATION, petitioners, vs. RAFAEL M. SALAS,
respondent.
DECISION
REGALADO, J.:
The present petition for review on certiorari seeks to nullify the decision of
the Court of Appeals, dated September 14, 1995, in CA-G.R. SP No.
38319 which set aside Resolution No. 92-1283 of the Civil Service
Commission (CSC) and ordered the reinstatement of herein private
respondent Rafael M. Salas with full back wages for having been illegally
dismissed by the Philippine Amusement and Gaming Corporation
(PAGCOR), but without prejudice to the filing of administrative charges
against him if warranted.[if !supportFootnotes][1][endif]
The records disclose that on October 7, 1989, respondent Salas was
appointed by the PAGCOR Chairman as Internal Security Staff (ISS)
member and assigned to the casino at the Manila Pavilion Hotel.
However, his employment was terminated by the Board of Directors of
PAGCOR on December 3, 1991, allegedly for loss of confidence, after a
covert investigation conducted by the Intelligence Division of PAGCOR.
The summary of intelligence information claimed that respondent was
allegedly engaged in proxy betting as detailed in the affidavits purportedly
executed by two customers of PAGCOR who claimed that they were used
as gunners on different occasions by respondent. The two polygraph tests
taken by the latter also yielded corroborative and unfavorable results.
On December 23, 1991, respondent Salas submitted a letter of appeal to
the Chairman and the Board of Directors of PAGCOR, requesting
reinvestigation of the case since he was not given an opportunity to be
heard, but the same was denied. On February 17, 1992, he appealed to
the Merit Systems Protection Board (MSPB) which denied the appeal on
the ground that, as a confidential employee, respondent was not
dismissed from the service but his term of office merely expired. On
appeal, the CSC issued Resolution No. 92-1283 which affirmed the
decision of the MSPB.[if !supportFootnotes][2][endif]
Respondent Salas initially went to this Court on a petition for certiorari
assailing the propriety of the questioned CSC resolution. However, in a
resolution dated August 15, 1995,[if !supportFootnotes][3][endif] the case was referred
to the Court of Appeals pursuant to Revised Administrative Circular No. 1-
95 which took effect on June 1, 1995.
On September 14, 1995, the court of Appeals rendered its questioned
decision with the finding that herein respondent Salas is not a confidential
employee, hence he may not be dismissed on the ground of loss of
confidence. In so ruling, the appellate court applied the "proximity rule"
enunciated in the case of Grio, et al. vs. Civil Service Commission, et al. [if !
supportFootnotes][4][endif]
. It likewise held that Section 16 of Presidential Decree
No. 1869 has been superseded and repealed by Section 2(1), Article IX-B
of the 1987 Constitution.
Hence this appeal, which is premised on and calls for the resolution of the
sole determinative issue of whether or not respondent Salas is a
confidential employee.
Petitioners aver that respondent Salas, as a member of the Internal
Security Staff of PAGCOR, is a confidential employee for several
reasons, viz.:
(1) Presidential Decree No. 1869 which created the Philippine
Amusement and Gaming Corporation expressly provides under Section
16 thereof that all employees of the casinos and related services shall be
classified as confidential appointees;
(2) In the case of the Philippine Amusement and Gaming Corporation vs.
Court of Appeals, et al.,[if !supportFootnotes][5][endif] The Supreme Court has
classified PAGCOR employees as confidential appointees;
(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared
employees in casinos and related services as confidential appointees by
operation of law; and
(4) Based on his functions as a member of the ISS, private respondent
occupies a confidential position.
Whence, according to petitioners, respondent Salas was not dismissed
from the service but, instead, his term of office had expired. They
additionally contend that the Court of Appeals erred in applying the
"proximity rule" because even if Salas occupied one of the lowest rungs in
the organizational ladder of PAGCOR, he performed the functions of one
of the most sensitive positions in the corporation.
On the other hand, respondent Salas argues that it is the actual nature of
an employee's functions, and not his designation or title, which
determines whether or not a position is primarily confidential, and that
while Presidential Decree No. 1869 may have declared all PAGCOR
employees to be confidential appointees, such executive pronouncement
may be considered as a mere initial determination of the classification of
positions which is not conclusive in case of conflict, in light of the ruling
enunciated in Tria vs. Sto. Tomas, et al.[if !supportFootnotes][6][endif]
We find no merit in the petition and consequently hold that the same
should be, as it is hereby, denied.
Section 2, Rule XX of the Revised Civil Service Rules, promulgated
pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (Civil
Service Act of 1959), which was then in force when Presidential Decree
No. 1869 creating the Philippine Amusement and Gaming Corporation
was passed, provided that "upon recommendation of the Commissioner,
the President may declare a position as policy-determining, primarily
confidential, or highly technical in nature." It appears that Section 16 of
Presidential Decree No. 1869 was predicated thereon, with the text
thereof providing as follows:
"All positions in the corporation, whether technical, administrative,
professional or managerial are exempt from the provisions of the Civil
Service Law, rules and regulations, and shall be governed only by the
personnel management policies set by the Board of Directors. All
employees of the casinos and related services shall be classified as
'confidential' appointees."
On the strength of this statutory declaration, petitioner PAGCOR
terminated the services of respondent Salas for lack of confidence after it
supposedly found that the latter was engaged in proxy betting. In
upholding the dismissal of respondent Salas, the CSC ruled that he is
considered a confidential employee by operation of law, hence there is no
act of dismissal to speak of but a mere expiration of a confidential
employee's term of office, such that a complaint for illegal dismissal will
not prosper in this case for lack of legal basis.
In reversing the decision of the CSC, the Court of Appeals opined that the
provisions of Section 16 of Presidential Decree No. 1869 may no longer
be applied in the case at bar because the same is deemed to have been
repealed in its entirety by Section 2(1), Article IX-B of the 1987
Constitution.[if !supportFootnotes][7][endif] This is not completely correct. On this
point, we approve the more logical interpretation advanced by the CSC to
the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR
positions from the provisions of Civil Service Law and Rules has been
amended, modified or deemed repealed by the 1987 Constitution and
Executive Order No. 292 (Administrative Code of 1987)."
However, the same cannot be said with respect to the last portion of
Section 16 which provides that "all employees of the casino and related
services shall be classified as 'confidential appointees.'" While such
executive declaration emanated merely from the provisions of Section 2,
Rule XX of the implementing rules of the Civil Service Act of 1959, the
power to declare a position as policy-determining, primarily confidential or
highly technical as defined therein has subsequently been codified and
incorporated in Section 12(9), Book V of Executive Order No. 292 or the
Administrative Code of 1987.[if !supportFootnotes][8][endif] This later enactment only
serves to bolster the validity of the categorization made under Section 16
of Presidential Decree No. 1869. Be that as it may, such classification is
not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there
were two recognized instances when a position may be considered
primarily confidential: Firstly, when the President, upon recommendation
of the Commissioner of Civil Service, has declared the position to be
primarily confidential; and, secondly in the absence of such declaration,
when by the nature of the functions of the office there exists "close
intimacy" between the appointee and appointing power which insures
freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state.[if !
supportFootnotes][9][endif]
At first glance, it would seem that the instant case falls under the first
category by virtue of the express mandate under Section 16 of
Presidential Decree No. 1869. An in-depth analysis, however, of the
second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5
thereof provided that "the non-competitive or unclassified service shall be
composed of positions expressly declared by law to be in the non-
competitive or unclassified service or those which are policy-determining,
primarily confidential, or highly technical in nature." In the case of Piero,
et al. vs. Hechanova, et al.,[if !supportFootnotes][10][endif] the Court obliged with a
short discourse there on how the phrase "in nature" came to find its way
into the law, thus:
"The change from the original wording of the bill (expressly declared by
law x x x to be policy-determining, etc.) to that finally approved and
enacted ('or which are policy-determining, etc. in nature') came about
because of the observations of Senator Taada, that as originally worded
the proposed bill gave Congress power to declare by fiat of law a certain
position as primarily confidential or policy-determining, which should not
be the case. The Senator urged that since the Constitution speaks of
positions which are 'primarily confidential, policy-determining, or highly
technical in nature', it is not within the power of Congress to declare what
positions are primarily confidential or policy-determining. 'It is the nature
alone of the position that determines whether it is policy-determining or
primarily confidential.' Hence, the Senator further observed, the matter
should be left to the 'proper implementation of the laws, depending upon
the nature of the position to be filled', and if the position is 'highly
confidential' then the President and the Civil Service Commissioner must
implement the law.
To a question of Senator Tolentino, 'But in positions that involved both
confidential matters and matters which are routine, x x x who is going to
determine whether it is primarily confidential?' Senator Taada replied:
'SENATOR TAADA: Well, at the first instance, it is the appointing power
that determines that: the nature of the position. In case of conflict then it
is the Court that determines whether the position is primarily confidential
or not" (Italics in the original text).
Hence the dictum that, at least since the enactment of the Civil Service
Act of 1959, it is the nature of the position which finally determines
whether a position is primarily confidential, policy-determining or highly
technical. And the court in the aforecited case explicitly decreed that
executive pronouncements, such as Presidential Decree No. 1869, can
be no more than initial determinations that are not conclusive in case of
conflict. It must be so, or else it would then lie within the discretion of the
Chief Executive to deny to any officer, by executive fiat, the protection of
Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution. [if !
supportFootnotes][11][endif]
In other words, Section 16 of Presidential Decree No.
1869 cannot be given a literally stringent application without
compromising the constitutionally protected right of an employee to
security of tenure.
The doctrinal ruling enunciated in Piero finds support in the 1935
Constitution and was reaffirmed in the 1973 Constitution, as well as in the
implementing rules of Presidential Decree No. 807, or the Civil Service
Decree of the Philippines.[if !supportFootnotes][12][endif] It may well be observed that
both the 1935 and 1973 Constitutions contain the provision, in Section 2,
Article XII-B thereof, that "appointments in the Civil Service, except as to
those which are policy-determining, primarily confidential, or highly
technical in nature, shall be made only according to merit and fitness, to
be determined as far as practicable by competitive examination."
Corollarily, Section 5 of Republic Act No. 2260 states that "the non-
competitive or unclassified service shall be composed of positions
expressly declared by law to be in the non-competitive or unclassified
service or those which are policy-determining, primarily confidential, or
highly technical in nature." Likewise, Section 1 of the General Rules in the
implementing rules of Presidential Decree No. 807 states that
"appointments in the Civil Service, except as to those which are the
policy-determining, primarily confidential, or highly technical in nature,
shall be made only according to merit and fitness to be determined as far
as practicable by competitive examination." Let it here be emphasized, as
we have accordingly italicized them, that these fundamental laws and
legislative or executive enactments all utilized the phrase "in nature" to
describe the character of the positions being classified.
The question that may now be asked is whether the Piero doctrine -- to
the effect that notwithstanding any statutory classification to the contrary,
it is still the nature of the position, as may be ascertained by the court in
case of conflict, which finally determines whether a position is primarily
confidential, policy-determining or highly technical -- is still controlling with
the advent of the 1987 Constitution and the Administrative Code of 1987, [if
!supportFootnotes][13][endif]
Book V of which deals specifically with the Civil Service
Commission, considering that from these later enactments, in defining
positions which are policy-determining, primarily confidential or highly
technical, the phrase "in nature" was deleted.[if !supportFootnotes][14][endif]
We rule in the affirmative. The matter was clarified and extensively
discussed during the deliberations in the plenary session of the 1986
Constitutional Commission on the Civil Service provisions, to wit:
"MR. FOZ. Which department of government has the power or authority to
determine whether a position is policy-determining or primarily
confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by
the executive department, but the final decision is done by the court. The
Supreme Court has constantly held that whether or not a position is
policy-determining, primarily confidential or highly technical, it is
determined not by the title but by the nature of the task that is entrusted
to it. For instance, we might have a case where a position is created
requiring that the holder of that position should be a member of the Bar
and the law classifies this position as highly technical. However, the
Supreme Court has said before that a position which requires mere
membership in the Bar is not a highly technical position. Since the term
'highly technical' means something beyond the ordinary requirements of
the profession, it is always a question of fact.
MR. FOZ. Does not Commissioner Bernas agree that the general rule
should be that the merit system or the competitive system should be
upheld?
FR. BERNAS. I agree that that it should be the general rule; that is why
we are putting this as an exception.
MR. FOZ. The declaration that certain positions are policy-determining,
primarily confidential or highly technical has been the source of practices
which amount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of
the administrative agency says that a position is primarily confidential
when in fact it is not, we can always challenge that in court. It is not
enough that the law calls it primarily confidential to make it such; it is the
nature of the duties which makes a position primarily confidential.
MR. FOZ. The effect of a declaration that a position is policy-determining,
primarily confidential or highly technical as an exception is to take it away
from the usual rules and provisions of the Civil Service Law and to place it
in a class by itself so that it can avail itself of certain privileges not
available to the ordinary run of government employees and officers.
FR. BERNAS. As I have already said, this classification does not do away
with the requirement of merit and fitness. All it says is that there are
certain positions which should not be determined by competitive
examination.
For instance, I have just mentioned a position in the Atomic Energy
Commission. Shall we require a physicist to undergo a competitive
examination before appointment? Or a confidential secretary or any
position in policy-determining administrative bodies, for that matter?
There are other ways of determining merit and fitness than competitive
examination. This is not a denial of the requirement of merit and fitness"
(Italics supplied).[if !supportFootnotes][15][endif]
It is thus clearly deducible, if not altogether apparent, that the primary
purpose of the framers of the 1987 Constitution in providing for the
declaration of a position as policy-determining, primarily confidential or
highly technical is to exempt these categories from competitive
examination as a means for determining merit and fitness. It must be
stressed further that these positions are covered by security of tenure,
although they are considered non-competitive only in the sense that
appointees thereto do not have to undergo competitive examinations for
purposes of determining merit and fitness.
In fact, the CSC itself ascribes to this view as may be gleaned from its
questioned resolution wherein it stated that "the declaration of a position
is primarily confidential if at all, merely exempts the position from the civil
service eligibility requirement." Accordingly, the Piero doctrine continues
to be applicable up to the present and is hereby maintained. Such being
the case, the submission that PAGCOR employees have been declared
confidential appointees by operation of law under the bare authority of
CSC Resolution No. 91-830 must be rejected.
We likewise find that in holding that herein private respondent is not a
confidential employee, respondent Court of Appeals correctly applied the
"proximity rule" enunciated in the early but still authoritative case of De
los Santos vs. Mallare, et al.,[if !supportFootnotes][16][endif] which held that:
"Every appointment implies confidence, but much more than ordinary
confidence is reposed in the occupant of a position that is primarily
confidential. The latter phrase denotes not only confidence in the aptitude
of the appointee for the duties of the office but primarily close intimacy
which ensures freedom of intercourse without embarrassment or freedom
from misgivings of betrayals of personal trust or confidential matters of
state. x x x" (Emphasis supplied).
This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts
of which are substantially similar to the case at bar, involving as it did
employees occupying positions in various capacities in the Port Patrol
Division of the Bureau of Customs. The Court there held that the mere
fact that the members of the Port Patrol Division are part of the Customs
police force is not in itself a sufficient indication that their positions are
primarily confidential. After quoting the foregoing passage from De los
Santos, it trenchantly declared:
"As previously pointed out, there are no proven facts to show that there is
any such close intimacy and trust between the appointing power and the
appellees as would support a finding that confidence was the primary
reason for the existence of the positions held by them or for their
appointment thereto. Certainly, it is extremely improbable that the service
demands any such closed trust and intimate relation between the
appointing official and, not one or two members alone but the entire
Customs patrol (Harbor Police) force, so that every member thereof can
be said to hold 'primarily confidential' posts". (Stress supplied).
It can thus be safely determined therefrom that the occupant of a
particular position could be considered a confidential employee if the
predominant reason why he was chosen by the appointing authority was,
to repeat, the latter's belief that he can share a close intimate relationship
with the occupant which ensures freedom of discussion, without fear of
embarrassment or misgivings of possible betrayal of personal trust or
confidential matters of state. Withal, where the position occupied is
remote from that of the appointing authority, the element of trust between
them is no longer predominant.[if !supportFootnotes][17][endif]
Several factors lead to the conclusion that private respondent does not
enjoy such "close intimacy" with the appointing authority of PAGCOR
which would otherwise place him in the category of a confidential
employee, to wit:
1. As an Internal Security Staff member, private respondent routinely
a. performs duty assignments at the gaming and/or non-gaming areas to
prevent irregularities, misbehavior, illegal transactions and other
anomalous activities among the employees and customers,
b. reports unusual incidents and related observations/information in
accordance with established procedures for infractions/mistakes
committed on the table and in other areas;
c. coordinates with CCTV and/or external security as necessary for the
prevention, documentation or suppression of any unwanted incidents at
the gaming and non-gaming areas;
d. acts as witness/representative of Security Department during chips
inventory, refills, yields, card shuffling and final shuffling;
e. performs escort functions during the delivery of table capital boxes,
refills and shoe boxes to the respective tables, or during transfer of yields
to Treasury.[if !supportFootnotes][18][endif]
Based on the nature of such functions of herein private respondent and
as found by respondent Court of Appeals, while it may be said that
honesty and integrity are primary considerations in his appointment as a
member of the ISS, his position does not involve "such close intimacy"
between him and the appointing authority, that is, the Chairman of
PAGCOR, as would ensure "freedom from misgivings of betrayals of
personal trust."[if !supportFootnotes][19][endif]
2. Although appointed by the Chairman, ISS members do not directly
report to the Office of the Chairman in the performance of their official Such circumstances merely reinforce the presumption of constitutionality
duties. An ISS members is subject to the control and supervision of an of the law.[if !supportFootnotes][21][endif]
Area Supervisor who, in turn, only implements the directives of the WHEREFORE, the impugned judgment of respondent Court of
Branch Chief Security Officer. The latter is himself answerable to the Appeals is hereby AFFIRMED in toto.
Chairman and the Board of Directors. Obviously, as the lowest in the SO ORDERED.
chain of command, private respondent does not enjoy that "primarily close
intimacy" which characterizes a confidential employee.
3. The position of an ISS member belongs to the bottom level of the
salary scale of the corporation, being in Pay Class 2 level only, whereas
the highest level is Pay Class 12.
Taking into consideration the nature of his functions, his organizational
ranking and his compensation level, it is obviously beyond debate that
private respondent cannot be considered a confidential employee. As set
out in the job description of his position, one is struck by the ordinary,
routinary and quotidian character of his duties and functions. Moreover,
the modest rank and fungible nature of the position occupied by private
respondent is underscored by the fact that the salary attached to it is a
meager P2,200.00 a month. There thus appears nothing to suggest that
private respondents's position was "highly" or much less, "primarily"
confidential in nature. The fact that, sometimes, private respondent may
handle ordinarily "confidential matters" or papers which are somewhat
confidential in nature does not suffice to characterize his position as
primarily confidential.[if !supportFootnotes][20][endif]
In addition, the allegation of petitioners that PAGCOR employees have
been declared to be confidential appointees in the case of Philippine
Amusement and Gaming Corporation vs. Court of Appeals, et al., ante, is
misleading. What was there stated is as follows:
"The record shows that the separation of the private respondent was done
in accordance with PD 1869, which provides that the employees of the
PAGCOR hold confidential positions. Montoya is not assailing the validity
of that law. The act that he is questioning is what he calls the arbitrary
manner of his dismissal thereunder that he avers entitled her to damages
under the Civil Code." (Italics ours).
Thus, the aforecited case was decided on the uncontested assumption
that the private respondent therein was a confidential employee, for the
simple reason that the propriety of Section 16 of Presidential Decree No.
1869 was never controverted nor raised as an issue therein. That decree
was mentioned merely in connection with its provision that PAGCOR
employees hold confidential positions. Evidently, therefore, it cannot be
considered as controlling in the case at bar. Even the fact that a statute
has been accepted as valid in cases where its validity was not challenged
does not preclude the court from later passing upon its constitutionality in
an appropriate cause where that question is squarely and properly raised.
[G.R. No. 135805. April 29, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY,
respondent.
DECISION
PARDO, J.:
The case before us is an appeal via certiorari interposed by the Civil
Service Commission from a decision of the Court of Appeals ruling that
respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring
null and void the Civil Service Commissions resolution dismissing him
from the service as Vocational School Administrator, Balicuatro College of
Arts and Trade, Allen, Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a Citizens Crime Watch
Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service
Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for
habitual drunkenness, misconduct and nepotism.[if !supportFootnotes][1][endif]
After the fact-finding investigation, the Civil Service Regional Office
No. 8, Tacloban City, found a prima facie case against respondent, and,
on March 5, 1996, issued the corresponding formal charge against him. [if !
supportFootnotes][2][endif] Accordingly, the Civil Service Commission conducted a
formal investigation, and, on January 28, 1997, the Civil Service
Commission promulgated its resolution finding no substantial evidence to
support the charge of habitual drunkenness and misconduct. However,
the Civil Service Commission found respondent Pedro O. Dacoycoy guilty
of nepotism on two counts as a result of the appointment of his two sons,
Rito and Ped Dacoycoy, as driver and utility worker, respectively, and
their assignment under his immediate supervision and control as the
Vocational School Administrator Balicuatro College of Arts and Trades,
and imposed on him the penalty of dismissal from the service.[if !supportFootnotes]
[3][endif]
On February 25, 1997, respondent Dacoycoy filed a motion for
reconsideration;[if !supportFootnotes][4][endif] however, on May 20, 1997, the Civil
Service Commission denied the motion.[if !supportFootnotes][5][endif]
On July 18, 1997, respondent Dacoycoy filed with the Court of
Appeals a special civil action for certiorari with preliminary injunction[if !
supportFootnotes][6][endif] to set aside the Civil Service Commissions resolutions.
On July 29, 1998, the Court of Appeals promulgated its decision
reversing and setting aside the decision of the Civil Service Commission,
ruling that respondent did not appoint or recommend his two sons Rito
and Ped, and, hence, was not guilty of nepotism. The Court further held
that it is the person who recommends or appoints who should be
sanctioned, as it is he who performs the prohibited act.[if !supportFootnotes][7][endif]
Hence, this appeal.
On November 17, 1998, we required respondent to comment on the
petition within ten (10) days from notice. [if !supportFootnotes][8][endif] On December
11, 1998, respondent filed his comment
We give due course to the petition.
The basic issue raised is the scope of the ban on nepotism.
We agree with the Civil Service Commission that respondent Pedro
O. Dacoycoy was guilty of nepotism and correctly meted out the penalty
of dismissal from the service.
The law defines nepotism[if !supportFootnotes][9][endif] as follows:
Sec. 59. Nepotism. (1) All appointments to the national, provincial, city
and municipal governments or in any branch or instrumentality thereof,
including government owned or controlled corporations, made in favor of
a relative of the appointing or recommending authority, or of the chief of
the bureau or office, or of the persons exercising immediate supervision
over him, are hereby prohibited.
As used in this Section, the word relative and members of the family
referred to are those related within the third degree either of
consanguinity or of affinity.
(2) The following are exempted from the operations of the rules on
nepotism: (a) persons employed in a confidential capacity, (b) teachers,
(c) physicians, and (d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full report of such
appointment shall be made to the Commission.
Under the definition of nepotism, one is guilty of nepotism if an
appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
Clearly, there are four situations covered. In the last two mentioned
situations, it is immaterial who the appointing or recommending authority
is. To constitute a violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third civil degree of
consanguinity or affinity of the chief of the bureau or office, or the person
exercising immediate supervision over the appointee.
Respondent Dacoycoy is the Vocational School Administrator,
Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true
that he did not appoint or recommend his two sons to the positions of
driver and utility worker in the Balicuatro College of Arts and Trades. In
fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the
BCAT, who recommended the appointment of Rito. Mr. Daclag's authority
to recommend the appointment of first level positions such as watchmen,
security guards, drivers, utility workers, and casuals and emergency
laborers for short durations of three to six months was recommended by
respondent Dacoycoy and approved by DECS Regional Director Eladio
C. Dioko, with the provision that such positions shall be under Mr.
Daclags immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II,
Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito
Dacoycoy driver of the school. On January 3, 1993, Mr. Daclag also
appointed Ped Dacoycoy casual utility worker. However, it was
respondent Dacoycoy who certified that funds are available for the
proposed appointment of Rito Dacoycoy and even rated his performance
as very satisfactory. On the other hand, his son Ped stated in his position
description form that his father was his next higher supervisor. The
circumvention of the ban on nepotism is quite obvious. Unquestionably,
Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who
was the school administrator. He authorized Mr. Daclag to recommend
the appointment of first level employees under his immediate supervision.
Then Mr. Daclag recommended the appointment of respondents two sons
and placed them under respondents immediate supervision serving as
driver and utility worker of the school. Both positions are career positions.
To our mind, the unseen but obvious hand of respondent Dacoycoy
was behind the appointing or recommending authority in the appointment
of his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the
party adversely affected who may take an appeal from an adverse
decision of the appellate court in an administrative civil service
disciplinary case. There is no question that respondent Dacoycoy may
appeal to the Court of Appeals from the decision of the Civil Service
Commission adverse to him.[if !supportFootnotes][10][endif] He was the respondent
official meted out the penalty of dismissal from the service. On appeal to
the Court of Appeals, the court required the petitioner therein, here
respondent Dacoycoy, to implead the Civil Service Commission as public
respondent[if !supportFootnotes][11][endif] as the government agency tasked with the
duty to enforce the constitutional and statutory provisions on the civil
service.[if !supportFootnotes][12][endif]
Subsequently, the Court of Appeals reversed the decision of the
Civil Service Commission and held respondent not guilty of nepotism.
Who now may appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the respondent, who was declared not
guilty of the charge. Nor the complainant George P. Suan, who was
merely a witness for the government.[if !supportFootnotes][13][endif] Consequently, the
Civil Service Commission has become the party adversely affected by
such ruling, which seriously prejudices the civil service system. Hence, as
an aggrieved party, it may appeal the decision of the Court of Appeals to
the Supreme Court.[if !supportFootnotes][14][endif] By this ruling, we now expressly
abandon and overrule extant jurisprudence that the phrase party
adversely affected by the decision refers to the government employee
against whom the administrative case is filed for the purpose of
disciplinary action which may take the form of suspension, demotion in
rank or salary, transfer, removal or dismissal from office[if !supportFootnotes][15][endif]
and not included are cases where the penalty imposed is suspension for
not more then thirty (30) days or fine in an amount not exceeding thirty
days salary[if !supportFootnotes][16][endif] or when the respondent is exonerated of
the charges, there is no occasion for appeal. [if !supportFootnotes][17][endif] In other
words, we overrule prior decisions holding that the Civil Service Law does
not contemplate a review of decisions exonerating officers or employees
from administrative charges enunciated in Paredes v. Civil Service
Commission;[if !supportFootnotes][18][endif] Mendez v. Civil Service Commission;[if !
supportFootnotes][19][endif] Magpale v. Civil Service Commission;[if !supportFootnotes][20][endif]
Navarro v. Civil Service Commission and Export Processing Zone
Authority[if !supportFootnotes][21][endif] and more recently Del Castillo v. Civil Service
Commission[if !supportFootnotes][22][endif]
The Court of Appeals reliance on Debulgado vs. Civil Service
Commission,[if !supportFootnotes][23][endif] to support its ruling is misplaced. The
issues in Debulgado are whether a promotional appointment is covered
by the prohibition against nepotism or the prohibition applies only to
original appointments to the civil service, and whether the Commission
had gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner after the Commission had
earlier approved that appointment. Debulgado never even impliedly
limited the coverage of the ban on nepotism to only the appointing or
recommending authority for appointing a relative. Precisely, in Debulgado,
the Court emphasized that Section 59 means exactly what it says in plain
and ordinary language: x x x The public policy embodied in Section 59 is
clearly fundamental in importance, and the Court had neither authority nor
inclination to dilute that important public policy by introducing a
qualification here or a distinction there.[if !supportFootnotes][24][endif]
Nepotism is one pernicious evil impeding the civil service and the
efficiency of its personnel. In Debulgado, we stressed that [T]the basic
purpose or objective of the prohibition against nepotism also strongly
indicates that the prohibition was intended to be a comprehensive one. [if !
supportFootnotes][25][endif] The Court was unwilling to restrict and limit the scope of

the prohibition which is textually very broad and comprehensive. [if !

supportFootnotes][26][endif] If not within the exceptions, it is a form of corruption that

must be nipped in the bud or bated whenever or wherever it raises its ugly
head. As we said in an earlier case what we need now is not only to
punish the wrongdoers or reward the outstanding civil servants, but also
to plug the hidden gaps and potholes of corruption as well as to insist on
strict compliance with existing legal procedures in order to abate any
occasion for graft or circumvention of the law.[if !supportFootnotes][27][endif]
WHEREFORE, the Court hereby GRANTS the petition and REVERSES
the decision of the Court of Appeals in CA-G.R. SP No. 44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions
of the Civil Service Commission dated January 28, 1998 and September
30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.
EN BANC
G.R. No. 131012, April 21, 1999
HON. RICARDO T. GLORIA, IN HIS CAPACITY AS SECRETARY OF
THE DEPARTMENT OF EDUCATION, CULTURE, AND SPORTS,
PETITIONER, VS. COURT OF APPEALS, AMPARO A. ABAD,
VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG AND NICANOR
MARGALLO, RESPONDENTS.
DECISION
MENDOZA, J.:
This case arose out of the unfortunate strikes and walk-outs staged by
public school teachers on different dates in September and October 1990.
The illegality of the strikes was declared in our 1991 decision in Manila
Public School Teachers Association v. Laguio, Jr.,[1] but many incidents of
those strikes are still to be resolved. At issue in this case is the right to
back salaries of teachers who were either dismissed or suspended
because they did not report for work but who were eventually ordered
reinstated because they had not been shown to have taken part in the
strike, although reprimanded for being absent without leave.
The facts are as follows:
Private respondents are public school teachers. On various dates in
September and October 1990, during the teachers' strikes, they did not
report for work. For this reason, they were administratively charged with
(1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil
Service Law Rules and Regulations and reasonable office regulations, (4)
refusal to perform official duty, (5) gross insubordination, (6) conduct
prejudicial to the best interest of the service, and (7) absence without
leave (AWOL), and placed under preventive suspension. The
investigation was concluded before the lapse of their 90-day suspension
and private respondents were found guilty as charged. Respondent
Nicanor Margallo was ordered dismissed from the service effective
October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas,
and Elizabeth Somebang were ordered suspended for six months
effective December 4, 1990.[2]
Respondent Margallo appealed to the Merit Systems and Protection
Board (MSPB) which found him guilty of conduct prejudicial to the best
interest of the service and imposed on him a six-month suspension. [3] The
other respondents also appealed to the MSPB, but their appeal was
dismissed because of their failure to file their appeal memorandum on
time.[4]
On appeal, the Civil Service Commission (CSC) affirmed the decision of
the MSPB with respect to Margallo, but found the other three (Abad,
Bandigas, and Somebang) guilty only of violation of reasonable office
rules and regulations by failing to file applications for leave of absence
and, therefore, reduced the penalty imposed on them to reprimand and
ordered them reinstated to their former positions.
Respondents filed a petition for certiorari under Rule 65 in this Court.
Pursuant to Revised Administrative Circular No. 1-95, the case was
referred to the Court of Appeals which, on September 3, 1996, rendered a
decision (1) affirming the decision of the CSC with respect to Amparo
Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing it
insofar as the CSC ordered the suspension of Nicanor Margallo. The
appellate court found him guilty of violation of reasonable office rules and
regulations only and imposed on him the penalty of reprimand.[5]
Private respondents moved for a reconsideration, contending that they
should be exonerated of all charges against them and that they be paid
salaries during their suspension. In its resolution, dated July 15, 1997, the
Court of Appeals, while maintaining its finding that private respondents
were guilty of violation of reasonable office rules and regulations for which
they should be reprimanded, ruled that private respondents were entitled
to the payment of salaries during their suspension "beyond ninety (90)
days." Accordingly, the appellate court amended the dispositive portion of
its decision to read as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby
DENIED. CSC Resolution Nos. 93-2302 dated June 24, 1993 and 93-
3124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution Nos.
93-2304 dated June 24, 1993 and 93-3227 dated August 17, 1993 (In re:
Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-
3125 dated August 10, 1993 (In re: Elizabeth Somebang) are hereby
AFFIRMED while CSC Resolution Nos. 93-2211 dated June 21, 1993 are
hereby MODIFIED finding petitioner Nicanor Margallo guilty of a lesser
offense of violation of reasonable office rules and regulations and meting
upon him the penalty of reprimand. Respondent DECS is ordered to pay
petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and
Nicanor Margallo their salaries, allowances and other benefits during the
period of their suspension/dismissal beyond the ninety (90) day
preventive suspension. No pronouncement as to costs.[6]
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and
Sports, moved for a reconsideration insofar as the resolution of the Court
of Appeals ordered the payment of private respondents' salaries during
the period of their appeal.[7] His motion was, however, denied by the
appellate court in its resolution of October 6, 1997.[8] Hence, this petition
for review on certiorari.
Petitioner contends that the administrative investigation of respondents
was concluded within the 90-day period of preventive suspension,
implying that the continued suspension of private respondents is due to
their appeal, hence, the government should not be held answerable for
payment of their salaries. Moreover, petitioner lays so much store by the
fact that, under the law, private respondents are considered under
preventive suspension during the period of their appeal and, for this
reason, are not entitled to the payment of their salaries during their
suspension.[9]
Petitioner's contentions have no merit.
I. Preventive Suspension and the Right to Compensation in Case of
Exoneration
The present Civil Service Law is found in Book V, Title I, Subtitle A of the
Administrative Code of 1987 (E.O. 292). So far as pertinent to the
questions in this case, the law provides:
SEC. 47. Disciplinary Jurisdiction. -
....
(2) The Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities shall have jurisdiction to investigate
and decide matters involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall be final in case
the penalty imposed is suspension for not more than thirty days or fine in
an amount not exceeding thirty days' salary. In case the decision
rendered by a bureau or office head is appealable to the Commission, the
same may be initially appealed to the department and finally to the
Commission and pending appeal, the same shall be executory except
when the penalty is removal, in which case the same shall be executory
only after confirmation by the Secretary concerned.
....
(4) An appeal shall not stop the decision from being executory, and in
case the penalty is suspension or removal, the respondent shall be
considered as having been under preventive suspension during the
pendency of the appeal in the event he wins an appeal.
SEC. 51. Preventive Suspension. - The proper disciplining authority may
preventively suspend any subordinate officer or employee under his
authority pending an investigation, if the charge against such officer or
employee involves dishonesty, oppression or grave misconduct, or
neglect in the performance of duty, or if there are reasons to believe that
the respondent is guilty of charges which would warrant his removal from
the service.
SEC. 52. Lifting of Preventive Suspension. Pending Administrative
Investigation. - When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date of
suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service: Provided, That
when the delay in the disposition of the case is due to the fault,
negligence or petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided.
There are thus two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or
suspension: (1) preventive suspension pending investigation (§51) and
(2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the
respondent is exonerated (§47(4)).
Preventive suspension pending investigation is not a penalty.[10] It is a
measure intended to enable the disciplining authority to investigate
charges against respondent by preventing the latter from intimidating or in
any way influencing witnesses against him. If the investigation is not
finished and a decision is not rendered within that period, the suspension
will be lifted and the respondent will automatically be reinstated. If after
investigation respondent is found innocent of the charges and is
exonerated, he should be reinstated.
A. No Right to Compensation for Preventive Suspension Pending
Investigation Even if Employee is Exonerated
Is he entitled to the payment of salaries during the period of suspension?
As already stated, the Court of Appeals ordered the DECS to pay private
respondents their salaries, allowances, and other benefits "beyond the
ninety (90) day preventive suspension." In other words, no compensation
was due for the period of the preventive suspension pending investigation
but only for the period of preventive suspension pending appeal in the
event the employee is exonerated.
The separate opinion of Justice Panganiban argues that the employee
concerned should be paid his salaries after his suspension.
The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of
such salaries in case of exoneration. Sec. 35 read:
S e c . 3 5 . Lifting of Preventive Suspension Pending Administrative
Investigation. - When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
Commissioner of Civil Service within the period of sixty (60) days after the
date of suspension of the respondent, the respondent shall be reinstated
in the service. If the respondent officer or employee is exonerated, he
shall be restored to his position with full pay for the period of suspension.
[11]
However, the law was revised in 1975 and the provision on the payment
of salaries during suspension was deleted. Sec. 42 of the Civil Service
Decree (P.D. No. 807) read:
S e c . 4 2 . Lifting of Preventive Suspension Pending Administrative
Investigation. - When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date of
suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service; Provided, That
when the delay in the disposition of the case is due to the fault,
negligence or petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided.
This provision was reproduced in §52 of the present Civil Service Law. It
is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770)
categorically provides that preventive suspension shall be "without pay."
Sec. 24 reads:
Sec. 24. Preventive Suspension. - The Ombudsman or his Deputy may
preventively suspend any officer or employee under his authority pending
an investigation, if in his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against
him.
The preventive suspension shall continue until the case is terminated by
the Office of the Ombudsman but not more than six months, without pay,
except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent,
in which case the period of such delay shall not be counted in computing
the period of suspension herein provided.
It is clear that the purpose of the amendment is to disallow the payment of
salaries for the period of suspension. This conclusion is in accord with the
rule of statutory construction that -
As a rule, the amendment by deletion of certain words or phrases in a
statute indicates that the legislature intended to change the meaning of
the statute, for the presumption is that the legislature would not have
made the deletion had the intention been not in effect a change in its
meaning. The amended statute should accordingly be given a
construction different from that previous to its amendment.[12]
The separate opinion of Justice Panganiban pays no heed to the evident
legislative intent to deny payment of salaries for the preventive
suspension pending investigation.
First, it says that to deny compensation for the period of preventive
suspension would be to reverse the course of decisions ordering the
payment of salaries for such period. However, the cases [13] cited are
based either on the former rule which expressly provided that "if the
respondent officer or employee is exonerated, he shall be restored to his
position with full pay for the period of suspension" [14] or that "upon
subsequent reinstatement of the suspended person or upon his
exoneration, if death should render reinstatement impossible, any salary
so withheld shall be paid,"[15] or on cases which do not really support the
proposition advanced.
Second, it is contended that the exoneration of employees who have
been preventively suspended is proof that there was no reason at all to
suspend them and thus makes their preventive suspension a penalty.
The principle governing entitlement to salary during suspension is
cogently stated in Floyd R. Mechem's A Treatise on the Law of Public
Offices and Officers as follows:
§864. Officer not entitled to Salary during Suspension from Office. -
An officer who has been lawfully suspended from his office is not entitled
to compensation for the period during which he was so suspended, even
though it be subsequently determined that the cause for which he was
suspended was insufficient. The reason given is "that salary and
perquisites are the reward of express or implied services, and therefore
cannot belong to one who could not lawfully perform such services."[16]
Thus, it is not enough that an employee is exonerated of the charges
against him. In addition, his suspension must be unjustified. The case of
Bangalisan v. Court of Appeals itself similarly states that "payment of
salaries corresponding to the period [1] when an employee is not allowed
to work may be decreed if he is found innocent of the charges which
caused his suspension and [2] when the suspension is unjustified."[17]
The preventive suspension of civil service employees charged with
dishonesty, oppression or grave misconduct, or neglect of duty is
authorized by the Civil Service Law. It cannot, therefore, be considered
"unjustified," even if later the charges are dismissed so as to justify the
payment of salaries to the employee concerned. It is one of those
sacrifices which holding a public office requires for the public good. For
this reason, it is limited to ninety (90) days unless the delay in the
conclusion of the investigation is due to the employee concerned. After
that period, even if the investigation is not finished, the law provides that
the employee shall be automatically reinstated.
Third, it is argued in the separate opinion that to deny employees salaries
on the "frivolous" ground that the law does not provide for their payment
would be to provide a "tool for the oppression of civil servants who,
though innocent, may be falsely charged of grave or less grave
administrative offenses." Indeed, the possibility of abuse is not an
argument against the recognition of the existence of power. As Justice
Story aptly put it, "It is always a doubtful course, to argue against the use
or existence of a power, from the possibility of its abuse. . . . [For] from
the very nature of things, the absolute right of decision, in the last resort,
must rest somewhere - wherever it may be vested it is susceptible of
abuse."[18] It may be added that if and when such abuse occurs, that
would be the time for the courts to exercise their nay-saying function. Until
then, however, the public interest in an upright civil service must be
upheld.
Finally, it is argued that even in the private sector, the law provides that
employees who are unjustly dismissed are entitled to reinstatement with
full pay. But that is because R.A. No. 6715 expressly provides for the
payment to such employees of "full backwages, inclusive of allowances,
and . . . other benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the time of his actual
reinstatement."[19] In the case of the public sector, as has been noted, the
provision for payment of salaries during the preventive suspension
pending investigation has been deleted.
B. Right to Compensation for Preventive Suspension Pending Appeal if
Employee is Exonerated
But although we hold that employees who are preventively suspended
pending investigation are not entitled to the payment of their salaries even
if they are exonerated, we do not agree with the government that they are
not entitled to compensation for the period of their suspension pending
appeal if eventually they are found innocent.
Preventive suspension pending investigation, as already discussed, is not
a penalty but only a means of enabling the disciplining authority to
conduct an unhampered investigation. On the other hand, preventive
suspension pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed. Hence, he should be
reinstated with full pay for the period of the suspension. Thus, §47(4)
states that respondent "shall be considered as under preventive
suspension during the pendency of the appeal in the event he wins." On
the other hand, if his conviction is affirmed, i.e., if he is not exonerated,
the period of his suspension becomes part of the final penalty of
suspension or dismissal.
It is precisely because respondent is penalized before his sentence is
confirmed that he should be paid his salaries in the event he is
exonerated. It would be unjust to deprive him of his pay as a result of the
immediate execution of the decision against him and continue to do so
even after it is shown that he is innocent of the charges for which he was
suspended. Indeed, to sustain the government's theory would be to make
the administrative decision not only executory but final and executory.
The fact is that §47(2) and (4) are similar to the execution of judgment
pending appeal under Rule 39, §2 of the Rules of Court. Rule 39, §5
provides that in the event the executed judgment is reversed, there shall
be restitution or reparation of damages as equity and justice may require.
Sec. 47 of the present law providing that an administrative decision
meting out the penalty of suspension or dismissal shall be immediately
executory and that if the respondent appeals he shall be considered as
being merely under preventive suspension if eventually he prevails is
taken from §37 of the Civil Service Decree of 1975 (P.D. No. 807). There
was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260),
although under it the Commissioner of Civil Service could order the
immediate execution of an administrative decision in the interest of the
public service.[20] Nor was there provision for immediate execution of
administrative decisions ordering dismissal or suspension in §695 of the
Administrative Code of 1917, as amended by C.A. No. 598, §1.[21]
Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in
cases in which employees were found to be innocent of the charges [22] or
their suspension was held to be unjustified, because the penalty of
suspension or dismissal was executed without a finding by the Civil
Service Commissioner that it was necessary "in the interest of the public
service."[23] On the other hand, payment of back salaries was denied
where it was shown that the employee concerned was guilty as charged
and the immediate execution of the decision was ordered by the Civil
Service Commissioner "in the interest of the public service."[24]
Nothing in what has thus far been said is inconsistent with the reason for
denying salaries for the period of preventive suspension. We have said
that an employee who is exonerated is not entitled to the payment of his
salaries because his suspension, being authorized by law, cannot be
unjustified. To be entitled to such compensation, the employee must not
only be found innocent of the charges but his suspension must likewise
be unjustified. But though an employee is considered under preventive
suspension during the pendency of his appeal in the event he wins, his
suspension is unjustified because what the law authorizes is preventive
suspension for a period not exceeding 90 days. Beyond that period the
suspension is illegal. Hence, the employee concerned is entitled to
reinstatement with full pay. Under existing jurisprudence, such award
should not exceed the equivalent of five years pay at the rate last
received before the suspension was imposed.[25]
II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES
ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE RULES AND
REGULATIONS AND REPRIMANDED
Private respondents were exonerated of all charges against them for acts
connected with the teachers' strike of September and October 1990.
Although they were absent from work, it was not because of the strike.
For being absent without leave, they were held liable for violation of
reasonable office rules and regulations for which the penalty is a
reprimand. Their case thus falls squarely within ruling in Bangalisan,
which likewise involved a teacher found guilty of having violated
reasonable office rules and regulations. Explaining the grant of salaries
during their suspension despite the fact that they were meted out
reprimand, this Court stated:
With respect to petitioner Rodolfo Mariano, payment of his backwages is
in order. A reading of the resolution of the Civil Service Commission will
show that he was exonerated of the charges which formed the basis for
his suspension. The Secretary of the DECS charged him with and he was
later found guilty of grave misconduct, gross neglect of duty, gross
violation of the Civil Service Law, rules and regulations and reasonable
office regulations, refusal to perform official duty, gross insubordination,
conduct prejudicial to the best interest of the service, and absence without
official leave, for his participation in the mass actions on September 18,
20 and 21, 1990. It was his alleged participation in the mass actions that
was the basis of his preventive suspension and, later, his dismissal from
the service.
However, the Civil Service Commission, in the questioned resolution,
made a finding that Mariano was not involved in the "mass actions" but
was absent because he was in Ilocos Sur to attend the wake and
interment of his grandmother. Although the CSC imposed upon him the
penalty of reprimand, the same was for his violation of reasonable office
rules and regulations because he failed to inform the school of his
intended absence and neither did he file an application for leave covering
such absences.
Under Section 23 of the Rules Implementing Book V of Executive Order
No. 292 and other pertinent civil service laws, in violations of reasonable
office rules and regulations, the first offense is punishable by reprimand.
To deny petitioner Mariano his back wages during his suspension would
be tantamount to punishing him after his exoneration from the charges
which caused his dismissal from the service.[26]
In Jacinto v. Court of Appeals,[27] a public school teacher who was found
guilty of violation of reasonable office rules and regulations for having
been absent without leave and reprimanded was given back salaries after
she was exonerated of the charge of having taken part in the strikes.
Petitioner Secretary of Education contends, however, that respondents
Abad, Bandigas, and Somebang signed a letter in which they admitted
having taken part in the mass action. This question cannot be raised now.
The Civil Service Commission gave no weight to this letter in view of
individual letters written by the three citing reasons for their absences, to
wit: Abad, because she decided to stay home to correct student papers;
Bandigas, because she had to accompany her brother to the Commission
on Immigration, and Somebang because of "economic reasons."
Petitioner did not appeal from this ruling. Hence, he is bound by the
factual findings of the CSC and the appellate court.
WHEREFORE, the decision, dated September 3, 1996, as amended by
the resolutions, dated July 15, 1997 and October 6, 1997, of the Court of
Appeals, is hereby AFFIRMED with the MODIFICATION that the award of
salaries to private respondents shall be computed from the time of their
dismissal/suspension by the Department of Education, Culture, and
Sports until their actual reinstatement, for a period not exceeding five
years.
SO ORDERED.
EN BANC
G.R. Nos. 217126-27, November 10, 2015
CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE
OMBUDSMAN, PETITIONER, VS. COURT OF APPEALS (SIXTH
DIVISION) AND JEJOMAR ERWIN S. BINAY, JR., RESPONDENTS.
DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and
immemorially acknowledged so to be[.]"[1]
The Case
Before the Court is a petition for certiorari and prohibition[2] filed on March
25, 2015 by petitioner Conchita Carpio Morales, in her capacity as the
Ombudsman (Ombudsman), through the Office of the Solicitor General
(OSG), assailing: (a) the Resolution[3] dated March 16, 2015 of public
respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which
granted private respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.)
prayer for the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order[4] dated March 10, 20,15 of the
Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order)
preventively suspending him and several other public officers and
employees of the City Government of Makati, for six (6) months without
pay; and (b) the Resolution[5] dated March 20, 2015 of the CA, ordering
the Ombudsman to comment on Binay, Jr.'s petition for contempt [6] in CA-
G.R. SP No. 139504.
Pursuant to the Resolution[7] dated April 6, 2015, the CA issued a writ of
preliminary injunction[8] (WPI) in CA-G.R. SP No. 139453 which further
enjoined the implementation of the preventive suspension order,
prompting the Ombudsman to file a supplemental petition[9] on April 13,
2015.
The Facts
On July 22, 2014, a complaint/affidavit[10] was filed by Atty. Renato L.
Bondal and Nicolas "Ching" Enciso VI before the Office of the
Ombudsman against Binay, Jr. and other public officers and employees of
the City Government of Makati (Binay, Jr., et al), accusing them of
Plunder[11] and violation of Republic Act No. (RA) 3019, [12] otherwise
known as "The Anti-Graft and Corrupt Practices Act," in connection with
the five (5) phases of the procurement and construction of the Makati City
Hall Parking Building (Makati Parking Building).[13]
On September 9, 2014, the Ombudsman constituted a Special Panel of
Investigators[14] to conduct a fact-finding investigation, submit an
investigation report, and file the necessary complaint, if warranted (1st
Special Panel).[15] Pursuant to the Ombudsman's directive, on March 5,
2015, the 1st Special Panel filed a complaint[16] (OMB Complaint) against
Binay, Jr., et al, charging them with six (6) administrative cases [17] for
Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the
Best Interest of the Service, and six (6) criminal cases[18] for violation of
Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification
of Public Documents (OMB Cases).[19]
As to Binay, Jr., the OMB Complaint alleged that he was involved in
anomalous activities attending the following procurement and construction
phases of the Makati Parking Building project, committed during his
previous and present terms as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013)[20]
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award [21] for
Phase III of the Makati Parking Building project to Hilmarc's Construction
Corporation (Hilmarc's), and consequently, executed the corresponding
contract[22] on September 28, 2010,[23] without the required publication
and the lack of architectural design, [24] and approved the release of funds
therefor in the following amounts as follows: (1) P130,518,394.80 on
December 15, 2010;[25] (2) P134,470,659.64 on January 19, 2011;[26] (3)
P92,775,202.27 on February 25, 2011;[27] (4) P57,148,625.51 on March
28, 2011;[28] (5) P40,908,750.61 on May 3, 2011;[29] a nd ( 6 )
P106,672,761.90 on July 7, 2011;[30]
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award [31] for
Phase IV of the Makati Parking Building project to Hilmarc's, and
consequently, executed the corresponding contract[32] on August 18,
2011,[33] without the required publication and the lack of architectural
design,[34] and approved the release of funds therefor in the following
amounts as follows: (1) P182,325,538.97 on October 4, 2O11; [35] (2)
P173,132,606.91 on October 28,2011; [36] (3) P80,408,735.20 on
December 12, 2011;[37] (4) P62,878,291.81 on February 10, 2012;[38] and
(5) P59,639,167.90 on October 1, 2012;[39]
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award[40] for
Phase V of the Makati Parking Building project to Hilmarc's, and
consequently, executed the corresponding contract[41] on September 13,
2012,[42] without the required publication and the lack of architectural
design,[43] and approved the release of the funds therefor in the amounts
of P32,398,220.05[44] and P30,582,629.30[45] on December 20, 2012; and
Binay, Jr.'s Second Term (2013 to 2016)[46]
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of
funds for the remaining balance of the September 13, 2012 contract with
Hilmarc's for Phase V of the Makati Parking Building project in the amount
of P27,443,629.97;[47] and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the
remaining balance of the contract[48] with MANA Architecture & Interior
Design Co. (MANA) for the design and architectural services covering the
Makati Parking Building project in the amount of P429,011.48.[49]
On March 6, 2015, the Ombudsman created another Special Panel of
Investigators to conduct a preliminary investigation and administrative
adjudication on the OMB Cases (2nd Special Panel).[50] Thereafter, on
March 9, 2015, the 2nd Special Panel issued separate orders[51] for each of
the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-
affidavits.[52]
Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman,
upon the recommendation of the 2nd Special Panel, issued on March 10,
2015, the subject preventive suspension order, placing Binay, Jr., et al.
under preventive suspension for not more than six (6) months without
pay, during the pendency of the OMB Cases.[53] The Ombudsman ruled
that the requisites for the preventive suspension of a public officer are
present,[54] finding that: (a) the evidence of Binay, Jr., et al.'s guilt was
strong given that (1) the losing bidders and members of the Bids and
Awards Committee of Makati City had attested to the irregularities
attending the Makati Parking Building project; (2) the documents on
record negated the publication of bids; and (3) the disbursement
vouchers, checks, and official receipts showed the release of funds; and
(b) (1) Binay, Jr., et al. were administratively charged with Grave
Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best
Interest of the Service; (2) said charges, if proven to be true, warrant
removal from public service under the Revised Rules on Administrative
Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s
respective positions give them access to public records and allow them to
influence possible witnesses; hence, their continued stay in office may
prejudice the investigation relative to the OMB Cases filed against them.
[55] Consequently, the Ombudsman directed the Department of Interior and
Local Government (DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the preventive suspension
order against Binay, Jr., et al., upon receipt of the same.[56]
On March 11, 2015, a copy of the preventive suspension order was sent
to the Office of the City Mayor, and received by Maricon Ausan, a
member of Binay, Jr.'s staff.[57]
The Proceedings Before the CA
On even date,[58] Binay, Jr. filed a petition for certiorari[59] before the CA,
docketed as CA-G.R. SP No. 139453, seeking the nullification of the
preventive suspension order, and praying for the issuance of a TRO
and/or WPI to enjoin its implementation.[60] Primarily, Binay, Jr. argued
that he could not be held administratively liable for any anomalous
activity attending any of the five (5) phases of the Makati Parking Building
project since: (a) Phases I and II were undertaken before he was elected
Mayor of Makati in 2010; and (b) Phases III to V transpired during his first
term and that his re-election as City Mayor of Makati for a second
term effectively condoned his administrative liability therefor, if any,
thus rendering the administrative cases against him moot and academic.
[61] In any event, Binay, Jr. claimed that the Ombudsman's preventive
suspension order failed to show that the evidence of guilt presented
against him is strong, maintaining that he did not participate in any of
the purported irregularities.[62] In support of his prayer for injunctive relief,
Binay, Jr. argued that he has a clear and unmistakable right to hold public
office, having won by landslide vote in the 2010 and 2013 elections, and
that, in view of the condonation doctrine, as well as the lack of evidence
to sustain the charges against him, his suspension from office would
undeservedly deprive the electorate of the services of the person they
have conscientiously chosen and voted into office.[63]
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the
implementation of the preventive suspension order through the DILG
National Capital Region - Regional Director, Renato L. Brion, CESO III
(Director Brion), who posted a copy thereof on the wall of the Makati City
Hall after failing to personally serve the same on Binay, Jr. as the points
of entry to the Makati City Hall were closed. At around 9:47 a.m.,
Assistant City Prosecutor of Makati Billy C. Evangelista administered the
oath of office on Makati City Vice Mayor Romulo V. Peña, Jr. (Peña, Jr.)
who thereupon assumed office as Acting Mayor.[64]

At noon of the same day, the CA issued a Resolution [65] (dated March 16,
2015), granting Binay, Jr.'s prayer for a TRO,[66] notwithstanding Pena,
Jr.'s assumption of duties as Acting Mayor earlier that day.[67] Citing the
case of Governor Garcia, Jr. v. CA,[68] the CA found that it was more
prudent on its part to issue a TRO in view of the extreme urgency of the
matter and seriousness of the issues raised, considering that if it were
established that the acts subject of the administrative cases against
Binay, Jr. were all committed during his prior term, then, applying the
condonation doctrine, Binay, Jr.'s re-election meant that he can no longer
be administratively charged.[69] The CA then directed the Ombudsman to
comment on Binay, Jr.'s petition for certiorari.[70]
On March 17, 2015, the Ombudsman manifested[71] that the TRO did not
state what act was being restrained and that since the preventive
suspension order had already been served and implemented, there was
no longer any act to restrain.[72]
On the same day, Binay, Jr. filed a petition for contempt, [73] docketed as
CA-G.R. SP No. 139504, accusing Secretary Roxas, Director Brion, the
officials of the Philippine National Police, and Pena, Jr. of deliberately
refusing to obey the CA, thereby allegedly impeding, obstructing, or
degrading the administration of justice. [74] The Ombudsman and
Department of Justice Secretary Leila M. De Lima were subsequently
impleaded as additional respondents upon Binay, Jr.'s filing of the
amended and supplemental petition for contempt[75] (petition for contempt)
on March 19, 2015.[76] Among others, Binay, Jr. accused the Ombudsman
and other respondents therein for willfully and maliciously ignoring the
TRO issued by the CA against the preventive suspension order.[77]
I n a Resolution[78] dated March 20, 2015, the CA ordered the
consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504,
and, without necessarily giving due course to Binay, Jr.'s petition for
contempt, directed the Ombudsman to file her comment thereto. [79] The
cases were set for hearing of oral arguments on March 30 and 31, 2015.
[80]
The Proceedings Before the Court
Prior to the hearing of the oral arguments before the CA, or on March 25,
2015, the Ombudsman filed the present petition before this Court,
assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s
prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015
Resolution directing her to file a comment on Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504.[81] The Ombudsman claims that: (a)
the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing
Section 14 of RA 6770,[82] or "The Ombudsman Act of 1989," which states
that no injunctive writ could be issued to delay the Ombudsman's
investigation unless there is prima facie evidence that the subject matter
thereof is outside the latter's jurisdiction;[83] and (b) the CA's directive for
the Ombudsman to comment on Binay, Jr.'s petition for contempt is illegal
and improper, considering that the Ombudsman is an impeachable
officer, and therefore, cannot be subjected to contempt proceedings.[84]
In his comment[85] filed on April 6, 2015, Binay, Jr. argues that Section 1,
Article VIII of the 1987 Constitution specifically grants the CA judicial
power to review acts of any branch or instrumentality of government,
including the Office of the Ombudsman, in case of grave abuse of
discretion amounting to lack or excess of jurisdiction, which he asserts
was committed in this case when said office issued the preventive
suspension order against him.[86] Binay, Jr. posits that it was incumbent
upon the Ombudsman to1 have been apprised of the condonation
doctrine as this would have weighed heavily in determining whether there
was strong evidence to warrant the issuance of the preventive suspension
order.[87] In this relation, Binay, Jr. maintains that the CA correctly enjoined
the implementation of the preventive suspension order given his clear and
unmistakable right to public office, and that it is clear that he could not be
held administratively liable for any of the charges against him since his
subsequent re-election in 2013 operated as a condonation of any
administrative offenses he may have committed during his previous term.
[88] As regards the CA's order for the Ombudsman to comment on his
petition for contempt, Binay, Jr. submits that while the Ombudsman is
indeed an impeachable officer and, hence, cannot be removed from office
except by way of impeachment, an action for contempt imposes the
penalty of fine and imprisonment, without necessarily resulting in removal
from office. Thus, the fact that the Ombudsman is an impeachable officer
should not deprive the CA of its inherent power to punish contempt.[89]
Meanwhile, the CA issued a Resolution[90] dated April 6, 2015, after the
oral arguments before it were held,[91] granting Binay, Jr.'s prayer for a
WPI, which further enjoined the implementation of the preventive
suspension order. In so ruling, the CA found that Binay, Jr. has an
ostensible right to the final relief prayed for, namely, the nullification of the
preventive suspension order, in view of the condonation doctrine, citing
Aguinaldo v. Santos.[92] Particularly, it found that the Ombudsman can
hardly impose preventive suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned any administrative
liability arising from anomalous activities relative to the Makati Parking
Building project from 2007 to 2013.[93] In this regard, the CA added that,
although there were acts which were apparently committed by Binay, Jr.
beyond his first term — namely, the alleged payments on July 3, July 4,
and July 24, 2013,[94] corresponding to the services of Hillmarc's and
MANA - still, Binay, Jr. cannot be held administratively liable therefor
based on the cases of Salalima v. Guingona, Jr.,[95] and Mayor Garcia
v. Mojica[96] wherein the condonation doctrine was still applied by the
Court although the payments were made after the official's re-election,
reasoning that the payments were merely effected pursuant to contracts
executed before said re-election.[97] To this, the CA added that there was
no concrete evidence of Binay, Jr.'s participation for the alleged payments
made on July 3, 4, and 24, 2013.[98]
In view of the CA's supervening issuance of a WPI pursuant to its April 6,
2015 Resolution, the Ombudsman filed a supplemental petition [99] before
this Court, arguing that the condonation doctrine is irrelevant to the
determination of whether the evidence of guilt is strong for purposes of
issuing preventive suspension orders. The Ombudsman also maintained
that a reliance on the condonation doctrine is a matter of defense, which
should have been raised by Binay, Jr. before it during the administrative
proceedings, and that, at any rate, there is no condonation because
Binay, Jr. committed acts subject of the OMB Complaint after his re-
election in 2013.[100]
On April 14 and 21, 2015,[101] the Court conducted hearings for the oral
arguments of the parties. Thereafter, they were required to file their
respective memoranda.[102] In compliance thereto, the Ombudsman filed
her Memorandum[103] on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.[104]
Pursuant to a Resolution[105] dated June 16, 2015, the Court directed the
parties to comment on each other's memoranda, and the OSG to
comment on the Ombudsman's Memorandum, all within ten (10) days
from receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each
other's memoranda.[106] Meanwhile, on July 16, 2015, the OSG filed its
Manifestation In Lieu of Comment,[107] simply stating that it was mutually
agreed upon that the Office of the Ombudsman would file its
Memorandum, consistent with its desire to state its "institutional
position."[108] In her Memorandum and Comment to Binay, Jr.'s
Memorandum, the Ombudsman pleaded, among others, that this Court
abandon the condonation doctrine.[109] In view of the foregoing, the case
was deemed submitted for resolution.
The Issues Before the Court
Based on the parties' respective pleadings, and as raised during the oral
arguments conducted before this Court, the main issues to be resolved in
seriatim are as follows:
Whether or not the present petition, and not motions for reconsideration of
the assailed CA issuances in CA-G.R. SP No. 139453 and CA-
G.R. SP No. 139504, is the Ombudsman's plain, speedy, and
adequate remedy;
Whether or not the CA has subject matter jurisdiction over the main
petition for certiorari in CA-G.R. SP No. 139453;
Whether or not the CA has subject matter jurisdiction to issue a TRO
and/or WPI enjoining the implementation of a preventive
suspension order issued by the Ombudsman;
Whether or not the CA gravely abused its discretion in issuing the TRO
and eventually, the WPI in CA-G.R. SP No. 139453 enjoining the
implementation of the preventive suspension order against Binay,
Jr. based on the condonation doctrine; and
Whether or not the CA's directive for the Ombudsman to ' comment on
Binay, Jr.'s petition for contempt in CA- G.R. SP No. 139504 is
improper and illegal.
The Ruling of the Court
The petition is partly meritorious.
I.
A common requirement to both a petition for certiorari and a petition for
prohibition taken under Rule 65 of the 1997 Rules of Civil Procedure is
that the petitioner has no other plain, speedy, and adequate remedy in the
ordinary course of law. Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. - When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.
xxxx
Section 2. Petition for prohibition. - When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts r
with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
x x x x (Emphases supplied)
Hence, as a general rule, a motion for reconsideration must first be filed
with the lower court prior to resorting to the extraordinary remedy of
certiorari or prohibition since a motion for reconsideration may still be
considered as a plain, speedy, and adequate remedy in the ordinary
course of law. The rationale for the pre-requisite is to grant an opportunity
for the lower court or agency to correct any actual or perceived error
attributed to it by the re-examination of the legal and factual
circumstances of the case.[110]
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere
absence of all other legal remedies and the danger of failure of justice
without the writ, that must usually determine the propriety of certiorari [or
prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly
relieve the petitioner from the injurious effects of the judgment, order, or
resolution of the lower court or agency, x x x."[111]
In this light, certain exceptions were crafted to the general rule requiring a
prior motion for reconsideration before the filing of a petition for certiorari,
which exceptions also apply to a petition for prohibition. [112] These are: (a)
where the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorari proceedings
have been duly raised and passed upon by the lower court, or are the
same as those raised and passed upon in the lower court; (c) where there
is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of the petitioner
or the subject matter of the action is perishable; (d) where, under the
circumstances, a motion for reconsideration would be useless; (e) where
petitioner was deprived of due process and there is extreme urgency for
relief; (f) where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable; (g) where
the proceedings in the lower court are a nullity for lack of due process; (h)
where the proceedings were ex parte or in which the petitioner had no
opportunity to object; and (i) where the issue raised is one purely of
law or where public interest is involved.[113]
In this case, it is ineluctably clear that the above-highlighted exceptions
attend since, for the first time, the question on the authority of the CA -
and of this Court, for that matter - to enjoin the implementation of a
preventive suspension order issued by the Office of the Ombudsman is
put to the fore. This case tests the constitutional and statutory limits of the
fundamental powers of key government institutions - namely, the Office of
the Ombudsman, the Legislature, and the Judiciary - and hence, involves
an issue of transcendental public importance that demands no less than a
careful but expeditious resolution. Also raised is the equally important
issue on the propriety of the continuous application of the condonation
doctrine as invoked by a public officer who desires exculpation from
administrative liability. As such, the Ombudsman's direct resort to
certiorari and prohibition before this Court, notwithstanding her failure to
move for the prior reconsideration of the assailed issuances in CA-G.R.
SP No. 139453 and CA-G.R. SP No. 139504 before the CA, is justified.
II.
Albeit raised for the first time by the Ombudsman in her Memorandum, [114]
it is nonetheless proper to resolve the issue on the CA's lack of subject
matter jurisdiction over the main petition for certiorari in CA-G.R. SP No.
139453, in view of the well-established rule that a court's jurisdiction over
the subject matter may be raised at any stage of the proceedings. The
rationale is that subject matter jurisdiction is conferred by law, and the
lack of it affects the very authority of the court to take cognizance of and
to render judgment on the action.[115] Hence, it should be preliminarily
determined if the CA indeed had subject matter jurisdiction over the main
CA-G.R. SP No. 139453 petition, as the same determines the validity of
all subsequent proceedings relative thereto. It is noteworthy to point out
that Binay, Jr. was given the opportunity by this Court to be heard on this
issue,[116] as he, in fact, duly submitted his opposition through his
comment to the Ombudsman's Memorandum.[117] That being said, the
Court perceives no reasonable objection against ruling on this issue.
The Ombudsman's argument against the CA's lack of subject matter
jurisdiction over the main petition, and her corollary prayer for its
dismissal, is based on her interpretation of Section 14, RA 6770, or the
Ombudsman Act,[118] which reads in full:
Section 14. Restrictions. - No writ of injunction shall be issued by any
court to delay an investigation being conducted by the Ombudsman under
this Act, unless there is a prima facie evidence that the subject matter of
the investigation is outside the jurisdiction of the Office of the
Ombudsman.
No court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman, except the Supreme Court, on
pure question of law.
The subject provision may be dissected into two (2) parts.
The first paragraph of Section 14, RA 6770 is a prohibition against any
court (except the Supreme Court[119]) from issuing a writ of injunction to
delay an investigation being conducted by the Office of the Ombudsman.
Generally speaking, "[injunction is a judicial writ, process or proceeding
whereby a party is ordered to do or refrain from doing a certain act. It may
be the main action or merely a provisional remedy for and as an incident
in the main action."[120] Considering the textual qualifier "to delay," which
connotes a suspension of an action while the main case remains pending,
the "writ of injunction" mentioned in this paragraph could only refer to
injunctions of the provisional kind, consistent with the nature of a
provisional injunctive relief.
The exception to the no injunction policy is when there is prima facie
evidence that the subject matter of the investigation is outside the office's
jurisdiction. The Office of the Ombudsman has disciplinary authority over
all elective and appointive officials of the government and its subdivisions,
instrumentalities, and agencies, with the exception only of impeachable
officers, Members of Congress, and the Judiciary.[121] Nonetheless, the
Ombudsman retains the power to investigate any serious misconduct in
office allegedly committed by officials removable by impeachment, for the
purpose of filing a verified complaint for impeachment, if warranted.[122]
Note that the Ombudsman has concurrent jurisdiction over certain
administrative cases which are within the jurisdiction of the regular courts
or administrative agencies, but has primary jurisdiction to investigate any
act or omission of a public officer or employee who is under the
jurisdiction of the Sandiganbayan.[123]
On the other hand, the second paragraph of Section 14, RA 6770
provides that no appeal or application for remedy may be heard against
the decision or findings of the Ombudsman, with the exception of the
Supreme Court on pure questions of law. This paragraph, which the
Ombudsman particularly relies on in arguing that the CA had no
jurisdiction over the main CA-G.R. SP No. 139453 petition, as it is
supposedly this Court which has the sole jurisdiction to conduct a judicial
review of its decisions or findings, is vague for two (2) reasons: (1) it is
unclear what the phrase "application for remedy" or the word "findings"
refers to; and (2) it does not specify what procedural remedy is solely
allowable to this Court, save that the same be taken only against a pure
question of law. The task then, is to apply the relevant principles of
statutory construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the
legislature should be sought in the words employed to express it, and that
when found[,] it should be made to govern, x x x. If the words of the law
seem to be of doubtful import, it may then perhaps become necessary to
look beyond them in order to ascertain what was in the legislative mind at
the time the law was enacted; what the circumstances were, under which
the action was taken; what evil, if any, was meant to be redressed; x x x
[a]nd where the law has contemporaneously been put into operation, and
in doing so a construction has necessarily been put upon it, this
construction, especially if followed for some considerable period, is
entitled to great respect, as being very probably a true expression of the
legislative purpose, and is not lightly to be overruled, although it is not
conclusive."[124]
As an aid to construction, courts may avail themselves of the actual
proceedings of the legislative body in interpreting a statute of doubtful
meaning. In case of doubt as to what a provision of a statute means, the
meaning put to the provision during the legislative deliberations may be
adopted,[125] albeit not controlling in the interpretation of the law.[126]
A. The Senate deliberations cited by the
Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.
The Ombudsman submits that the legislative intent behind Section 14, RA
6770, particularly on the matter of judicial review of her office's decisions
or findings, is supposedly clear from the following Senate deliberations:[127]
Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14,
after the phrase "petition for" delete the word "review" and in lieu thereof,
insert the word CERTIORARI. So that, review or appeal from the decision
of the Ombudsman would only be taken not on a petition for review, but
on certiorari.
The President [Jovito R. Salonga]. What is the practical effect of
that? Will it be more difficult to reverse the decision under review?
Senator Angara. It has two practical effect ways, Mr. President. First is
that the findings of facts of the Ombudsman would be almost
conclusive if supported by substantial evidence. Second, we would
not unnecessarily clog the docket of the Supreme Court. So, it in
effect will be a very strict appeal procedure.
xxxx
Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example,
if there are exhaustive remedies available to a respondent, the
respondent himself has the right to exhaust the administrative remedies
available to him?
Senator Angara. Yes, Mr. President, that is correct.
Senator Guingona. And he himself may cut the proceeding short by
appealing to the Supreme Court only on certiorari?
Senator Angara. On question of law, yes.
Senator Guingona. And no other remedy is available to him?
Senator Angara. Going to the Supreme Court, Mr. President?
Senator Guingona. Yes. What I mean to say is, at what stage, for
example, if he is a presidential appointee who is the respondent, if there
is f no certiorari available, is the respondent given the right to exhaust his
administrative remedies first before the Ombudsman can take the
appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend to
change the administrative law principle that before one can go to court,
he must exhaust all administrative remedies xxx available to him before
he goes and seeks judicial review.
xxxx
Senator [Neptali A.] Gonzales. What is the purpose of the Committee
in changing the method of appeal from one of a petition for review to
a petition for certiorari?
Senator Angara. To make it consistent, Mr. President, with the
provision here in the bill to the effect that the finding of facts of the
Ombudsman is conclusive if supported by substantial evidence.
Senator Gonzales. A statement has been made by the Honorable
Presiding Officer to which I concur, that in an appeal by certiorari, the
appeal is more difficult. Because in certiorari it is a matter of
discretion on the part of the court, whether to give due course to the
petition or dismiss it outright. Is that not correct, Mr. President?
Senator Angara. That is absolutely correct, Mr. President
Senator Gonzales. And in a petition for certiorari, the issue is limited
to whether or not the Ombudsman here has acted without
jurisdiction and has committed a grave abuse of discretion
amounting to lack of jurisdiction. Is that not the consequence, Mr.
President.
Senator Angara. That is correct, Mr. President.
Senator Gonzales. And it is, therefore, in this sense that the intention of
the Committee is to make it harder to have a judicial review, but
should be limited only to cases that I have enumerated.
Senator Angara. Yes, Mr. President.
Senator Gonzales. I think, Mr. President, our Supreme Court has made a
distinction between a petition for review and a petition for certiorari;
because before, under the 1935 Constitution appeal from any order,
ruling or decision of the COMELEC shall be by means of review. But
under the Constitution it is now by certiorari and the Supreme Court said
that by this change, the court exercising judicial review will not inquire into
the facts, into the evidence, because we will not go deeply by way of
review into the evidence on record but its authority will be limited to a
determination of whether the administrative agency acted without, or in
excess of, jurisdiction, or committed a grave abuse of discretion. So, I
assume that that is the purpose of this amendment, Mr. President.
Senator Angara. The distinguished Gentleman has stated it so well.
Senator Gonzales. I just want to put that in the Record. Senator Angara.
It is very well stated, Mr. President.
xxxx
The President. It is evident that there must be some final authority to
render decisions. Should it be the Ombudsman or should it be the
Supreme Court?
Senator Angara. As I understand it, under our scheme of government,
Mr. President, it is and has to be the Supreme Court to make the final
determination.
The President. Then if that is so, we have to modify Section 17.
Senator Angara. That is why, Mr. President, some of our Colleagues
have made a reservation to introduce an appropriate change during the
period of Individual Amendments.
xxxx
The President. All right. Is there any objection to the amendment
inserting the word CERTIORARI instead of "review"? [Silence] Hearing
none, the same is approved.[128]
Upon an assiduous scrutiny of these deliberations, the Court is, however,
unconvinced that the provision debated on was Section 14, RA 6770, as
the Ombudsman invokes. Note that the exchange begins with the
suggestion of Senator Angara to delete the word "review" that comes
after the phrase "petition for review" and, in its stead, insert the word
"certiorari" so that the "review or appeal from the decision of the
Ombudsman would not only be taken on a petition for review, but on
certiorari" The ensuing exchange between Senators Gonzales and
Angara then dwells on the purpose of changing the method of review from
one of a petition for review to a petition for certiorari - that is, to make "the
appeal x x x more difficult." Ultimately, the amendment to the change in
wording, from "petition for review" to "petition for certiorari" was approved.
Noticeably, these references to a "petition for review" and the proposed
"petition for certiorari" are nowhere to be found in the text of Section 14,
RA 6770. In fact, it was earlier mentioned that this provision, particularly
its second paragraph, does not indicate what specific procedural remedy
one should take in assailing a decision or finding of the Ombudsman; it
only reveals that the remedy be taken to this Court based on pure
questions of law. More so, it was even commented upon during the oral
arguments of this case[129] that there was no debate or clarification made
on the current formulation of the second paragraph of Section 14, RA
6770 per the available excerpts of the Senate deliberations. In any case,
at least for the above-cited deliberations, the Court finds no adequate
support to sustain the Ombudsman's entreaty that the CA had no subject
matter jurisdiction over the main CA-G.R. SP No. 139453 petition.
On the contrary, it actually makes greater sense to posit that these
deliberations refer to another Ombudsman Act provision, namely Section
27, RA 6770. This is because the latter textually reflects the approval of
Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court
(fourth paragraph), and further, his comment on the conclusive nature of
the factual findings of the Ombudsman, if supported by substantial
evidence (third paragraph):
Section 27. Effectivity and Finality of Decisions.— (1) All provisionary
orders of the Office of the Ombudsman are immediately effective and
executory.
A motion for reconsideration of any order, directive or decision of the
Office of the Ombudsman must be filed within five (5) days after receipt of
written notice and shall be entertained only on any of the following
grounds:
(1) New evidence has been discovered which materially affects the order,
directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the
interest of the movant. The motion for reconsideration shall be resolved
within three (3) days from filing: Provided, That only one motion for
reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by
substantial evidence are conclusive. Any order, directive or decision
imposing the penalty of public censure or reprimand, suspension of not
more than one (1) month's salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives, or
decisions of the Office of the Ombudsman may be appealed to the
Supreme Court by filing a petition for certiorari within ten (10) days
from receipt of the written notice of the order, directive or decision
or denial of the motion for reconsideration in accordance with Rule
45 of the Rules of Court.
The above rules may be amended or modified by the Office of the '
Ombudsman as the interest of justice may require. (Emphasis and
underscoring supplied)
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in
stating that a "petition for certiorari" should be taken in accordance with
Rule 45 of the Rules of Court, as it is well-known that under the present
1997 Rules of Civil Procedure, petitions for certiorari are governed by
Rule 65 of the said Rules. However, it should be discerned that the
Ombudsman Act was passed way back in 1989[130] and, hence, before the
advent of the 1997 Rules of Civil Procedure.[131] At that time, the
governing 1964 Rules of Court,[132] consistent with Section 27, RA 6770,
referred to the appeal taken thereunder as a petition for certiorari, thus
possibly explaining the remedy's textual denomination, at least in the
provision's final approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court
SECTION 1. Filing of Petition with Supreme Court. - A party may appeal
by certiorari, from a judgment of the Court of Appeals, by filing with the
Supreme Court a petition for certiorari, within fifteen (15) days from
notice of judgment or of the denial of his motion for reconsideration filed in
due time, and paying at the same time, to the clerk of said court the
corresponding docketing fee. The petition shall not be acted upon without
proof of service of a copy thereof to the Court of Appeals. (Emphasis
supplied)
B. Construing the second paragraph of
Section 14, RA 6770.
The Senate deliberations' lack of discussion on the second paragraph of
Section 14, RA 6770 notwithstanding, the other principles of statutory
construction can apply to ascertain the meaning of the provision.
To recount, the second paragraph of Section 14, RA 6770 states that
"[n]o court shall hear any appeal or application for remedy against
the decision or findings of the Ombudsman, except the Supreme
Court, on pure question of law." ;
As a general rule, the second paragraph of Section 14, RA 6770 bans
the whole range of remedies against issuances of the Ombudsman,
by prohibiting: (a) an appeal against any decision or finding of the
Ombudsman, and (b) "any application of remedy" (subject to the
exception below) against the same. To clarify, the phrase "application for
remedy," being a generally worded provision, and being separated from
the term "appeal" by the disjunctive "or",[133] refers to any remedy (whether
taken mainly or provisionally), except an appeal, following the maxim
generalia verba sunt generaliter intelligenda: general words are to be
understood in a general sense.[134] By the same principle, the word
"findings," which is also separated from the word "decision" by the
disjunctive "or", would therefore refer to any finding made by the
Ombudsman (whether final or provisional), except a decision.
The subject provision, however, crafts an exception to the foregoing
general rule. While the specific procedural vehicle is not explicit from its
text, it is fairly deducible that the second paragraph of Section 14, RA
6770 excepts, as the only allowable remedy against "the decision or
findings of the Ombudsman," a Rule 45 appeal, for the reason that it is
the only remedy taken to the Supreme Court on "pure questions of
law," whether under the 1964 Rules of Court or the 1997 Rules of Civil
Procedure:
Rule 45, 1964 Rules of Court
RULE 45
Appeal from Court of Appeals to Supreme Court
xxxx
Section 2. Contents of Petition. — The petition shall contain a concise
statement of the matters involved, the assignment of errors made in the
court below, and the reasons relied on for the allowance of the petition,
and it should be accompanied with a true copy of the judgment sought to
be reviewed, together with twelve (12) copies of the record on appeal, if
any, and of the petitioner's brief as filed in the Court of Appeals. A verified
statement of the date when notice of judgment and denial of the motion
for reconsideration, if any, were received shall accompany the petition.
Only questions of law may be raised in the petition and must be
distinctly set forth. If no record on appeal has been filed in the Court of
Appeals, the clerk of the Supreme Court, upon admission of the petition,
shall demand from the Court of Appeals the elevation of the whole record
of the case. (Emphasis and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure
RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party desiring to
appeal by certiorari from a judgment, final order or resolution of the Court
of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of law, which
must be distinctly set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the same action or
proceeding at any time during its pendency. (Emphasis and underscoring
supplied)
That the remedy excepted in the second paragraph of Section 14, RA
6770 could be a petition for certiorari under Rule 65 of the 1964 Rules of
Court or the 1997 Rules of Procedure is a suggestion that defies
traditional norms of procedure. It is basic procedural law that a Rule 65
petition is based on errors of jurisdiction, and not errors of judgment to
which the classifications of (a) questions of fact, (b) questions of law, or
(c) questions of mixed fact and law, relate to. In fact, there is no
procedural rule, whether in the old or new Rules, which grounds a Rule
65 petition on pure questions of law. Indeed, it is also a statutory
construction principle that the lawmaking body cannot be said to have
intended the establishment of conflicting and hostile systems on the same
subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility. [135]
There should then be no confusion that the second paragraph of Section
14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In
sum, the appropriate construction of this Ombudsman Act provision is that
all remedies against issuances of the Office of the Ombudsman are
prohibited, except the above-stated Rule 45 remedy to the Court on pure
questions of law.
C. Validity of the second paragraph of
Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's extremely
limited restriction on remedies is inappropriate since a Rule 45 appeal
-which is within the sphere of the rules of procedure promulgated by this
Court - can only be taken against final decisions or orders of lower courts,
[136] and not against "findings" of quasi-judicial agencies. As will be later
elaborated upon, Congress cannot interfere with matters of procedure;
hence, it cannot alter the scope of a Rule 45 appeal so as to apply to
interlocutory "findings" issued by the Ombudsman. More significantly, by
confining the remedy to a Rule 45 appeal, the provision takes away the
remedy of certiorari, grounded on errors of jurisdiction, in denigration of
the judicial power constitutionally vested in courts. In this light, the second
paragraph of Section 14, RA 6770 also increased this Court's appellate
jurisdiction, without a showing, however, that it gave its consent to the
same. The provision is, in fact, very similar to the fourth paragraph of
Section 27, RA 6770 (as above-cited), which was invalidated in the case
of Fabian v. Desiertoni[137] (Fabian).[138]
In Fabian, the Court struck down the fourth paragraph of Section 27, RA
6770 as unconstitutional since it had the effect of increasing the appellate
jurisdiction of the Court without its advice and concurrence in violation of
Section 30, Article VI of the 1987 Constitution.[139] Moreover, this provision
was found to be inconsistent with Section 1, Rule 45 of the present 1997
Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan,
the Court of Tax Appeals, the Regional Trial Court, or other courts
authorized by law;" and not of quasi-judicial agencies, such as the Office
of the Ombudsman, the remedy now being a Rule 43 appeal to the
Court of Appeals. In Ruivivar v. Office of the Ombudsman,[140] the Court's
ratiocinations and ruling in Fabian were recounted:
The case of Fabian v. Desierto arose from the doubt created in the
application of Section 27 of R.A. No. 6770 (The Ombudsman's Act) and
Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the
Ombudsman) on the availability of appeal before the Supreme Court to
assail a decision or order of the Ombudsman in administrative cases. In
Fabian, we invalidated Section 27 of R.A. No. 6770 (and Section 7,
Rule III of A.O. No. 7 and the other rules implementing the Act)
insofar as it provided for appeal by certiorari under Rule 45 from the
decisions or orders of the Ombudsman in administrative cases. We
held that Section 27 of R.A. No. 6770 had the effect, not only of
increasing the appellate jurisdiction of this Court without its advice
and concurrence in violation of Section 30, Article VI of the
Constitution; it was also inconsistent with Section 1, Rule 45 of the
Rules of Court which provides that a petition for review on certiorari
shall apply only to a review of "judgments or final orders of the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court, or other courts authorized by law." We pointedly
said:
As a consequence of our ratiocination that Section 27 of Republic Act No.
6770 should be struck down as unconstitutional, and in line with the
regulatory philosophy adopted in appeals from quasi-judicial agencies in
the 1997 Revised Rules of Civil Procedure, appeals from decisions of the
Office of the Ombudsman in administrative disciplinary cases should be
taken to the CA under the provisions of Rule 43.[141] (Emphasis supplied)
Since the second paragraph of Section 14, RA 6770 limits the remedy
against "decision or findings" of the Ombudsman to a Rule 45 appeal and
thus - similar to the fourth paragraph of Section 27, RA 6770 [142] - attempts
to effectively increase the Supreme Court's appellate jurisdiction without
its advice and concurrence,[143] it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the
Ombudsman's posturing,[144] Fabian should squarely apply since the
above-stated Ombudsman Act provisions are in part materia in that they
"cover the same specific or particular subject matter," [145] that is, the
manner of judicial review over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly
determinative of the existence of the CA's subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition, including all subsequent
proceedings relative thereto, as the Ombudsman herself has developed,
the Court deems it proper to resolve this issue ex mero motu (on its own
motion[146]). This procedure, as was similarly adopted in Fabian, finds its
bearings in settled case law:
The conventional rule, however, is that a challenge on constitutional
grounds must be raised by a party to the case, neither of whom did so in
this case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the judiciary and
other departments of the government and the judges are sworn to support
its provisions, the courts are not at liberty to overlook or disregard its
commands or countenance evasions thereof. When it is clear , that a
statute transgresses the authority vested in a legislative body, it is the
duty of the courts to declare that the constitution, and not the statute,
governs in a case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional questions
which are not raised in the pleadings, the rule has been recognized to
admit of certain exceptions. It does not preclude a court from inquiring
into its own jurisdiction or compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a court's jurisdiction in a
proceeding depends is unconstitutional, the court has no jurisdiction in the
proceeding, and since it may determine whether or not it has jurisdiction,
it necessarily follows that it may inquire into the constitutionality of the
statute.
Constitutional questions, not raised in the regular and orderly
procedure in the trial are ordinarily rejected unless the jurisdiction
of the court below or that of the appellate court is involved in which
case it may be raised at any time or on the court's own motion. The
Court ex mero motu may take cognizance of lack of jurisdiction at any
point in the case where that fact is developed. The court has a clearly
recognized right to determine its own jurisdiction in any proceeding. [147]
(Emphasis supplied)
D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453
was filed by Binay, Jr. before the CA in order to nullify the preventive
suspension order issued by the Ombudsman, an interlocutory order, [148]
hence, unappealable.[149]
In several cases decided after Fabian, the Court has ruled that Rule 65
petit ions f or certiorari against unappelable issuances [150] o f t h e
Ombudsman should be filed before the CA, and not directly before this
Court:
In Office of the Ombudsman v. Capulong [151] (March 12, 2014), wherein a
preventive suspension order issued by the Office of the Ombudsman was
- similar to this case - assailed through a Rule 65 petition for certiorari
filed by the public officer before the CA, the Court held that "[t]here being a
finding of grave abuse of discretion on the part of the Ombudsman, it was
certainly imperative for the CA to grant incidental reliefs, as sanctioned by
Section 1 of Rule 65."[152]
In Dagan v. Office of the Ombudsman [153] (November 19, 2013), involving
a Rule 65 petition for certiorari assailing a final and unappealable order of
the Office of the Ombudsman in an administrative case, the Court
remarked that "petitioner employed the correct mode of review in this
c a s e , i.e., a special civil action for certiorari before the Court of
Appeals."[154] In this relation, it stated that while "a special civil action for
Certiorari is within the concurrent original jurisdiction of the Supreme
Court and the Court of Appeals, such petition should be initially filed with
the Court of Appeals in observance of the doctrine of hierarchy of courts."
Further, the Court upheld Barata v. Abalos, Jr.[155] (June 6, 2001), wherein
it was ruled that the remedy against final and unappealable orders of the
Office of the Ombudsman in an administrative case was a Rule 65
petition to the CA. The same verdict was reached in Ruivivar[156]
(September 16, 2008).
Thus, with the unconstitutionality of the second paragraph of Section 14,
RA 6770, the Court, consistent with existing jurisprudence, concludes that
the CA has subject matter jurisdiction over the main CA-G.R. SP No.
139453 petition. That being said, the Court now examines the objections
of the Ombudsman, this time against the CA's authority to issue the
assailed TRO and WPI against the implementation of the preventive
suspension order, incidental to that main case.
III.
From the inception of these proceedings, the Ombudsman has been
adamant that the CA has no jurisdiction to issue any provisional injunctive
writ against her office to enjoin its preventive suspension orders. As basis,
she invokes the first paragraph of Section 14, RA 6770 in conjunction
with her office's independence under the 1987 Constitution. She
advances the idea that "[i]n order to further ensure [her office's]
independence, [RA 6770] likewise insulated it from judicial
intervention,"[157] particularly, "from injunctive reliefs traditionally obtainable
from the courts,"[158] claiming that said writs may work "just as effectively
as direct harassment or political pressure would."[159]
A. The concept of Ombudsman independence.
Section 5, Article XI of the 1987 Constitution guarantees the
independence of the Office of the Ombudsman:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,
Visayas[,] and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. (Emphasis supplied)
In Gonzales III v. Office of the President[160] (Gonzales III), the Court
traced the historical underpinnings of the Office of the Ombudsman:
Prior to the 1973 Constitution, past presidents established several
Ombudsman-like agencies to serve as the people's medium for airing
grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize
their objective for lack of the political independence necessary for the
effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the Ombudsman
became a constitutionally-mandated office to give it political
independence and adequate powers to enforce its mandate. Pursuant to
the ( 1973 Constitution, President Ferdinand Marcos enacted Presidential
Decree (PD) No. 1487, as amended by PD No. 1607 and PD No. 1630,
creating the Office of the Ombudsman to be known as Tanodbayan. It
was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any
government-owned or controlled corporation. When the Office of the
Tanodbayan was reorganized in 1979, the powers previously vested in
the Special Prosecutor were transferred to the Tanodbayan himself. He
was given the exclusive authority to conduct preliminary investigation of
all cases cognizable by the Sandiganbayan, file the corresponding
information, and control the prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman
was created by constitutional fiat. Unlike in the 1973 Constitution, its
independence was expressly and constitutionally guaranteed. Its
objectives are to enforce the state policy in Section 27, Article II and the
standard of accountability in public service under Section 1, Article XI of
the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.
Section 1. Public office is a public trust. Public officers and employees
must, at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and
justice, and lead modest lives.[161] (Emphasis supplied)
More significantly, Gonzales III explained the broad scope of the office's
mandate, and in correlation, the impetus behind its independence:
Under Section 12, Article XI of the 1987 Constitution, the Office of the
Ombudsman is envisioned to be the "protector of the people" against the
inept, abusive, and corrupt in the Government, to function essentially as a
complaints and action bureau. This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses , of the
bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to further realize
the vision of the Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The
Office of the Ombudsman shall have disciplinary authority over all elective
and appointive officials of the Government and its subdivisions,
instrumentalities, and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.
As the Ombudsman is expected to be an "activist watchman," the < Court
has upheld its actions, although not squarely falling under the broad
powers granted [to] it by the Constitution and by RA No. 6770, if these
actions are reasonably in line with its official function and consistent with
the law and the Constitution.
The Ombudsman's broad investigative and disciplinary powers include all
acts of malfeasance, misfeasance, and nonfeasance of all public officials,
including Members of the Cabinet and key Executive officers, during their
tenure. To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and
influence of officialdom and partisan politics and from fear of
external reprisal by making it an "independent" office, x x x.
xxxx
Given the scope of its disciplinary authority, the Office of the Ombudsman
is a very powerful government constitutional agency that is considered "a
notch above other grievance-handling investigative bodies." It has
powers, both constitutional and statutory, that are commensurate , with its
daunting task of enforcing accountability of public officers. [162] (Emphasis
and underscoring supplied)
Gonzales III is the first case which grappled with the meaning of the
Ombudsman's independence vis-a-vis the independence of the other
constitutional bodies. Pertinently, the Court observed:
(1) "[T]he independence enjoyed by the Office of the Ombudsman and by
the Constitutional Commissions shares certain characteristics - they do
not owe their existence to any act of Congress, but are created by
the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to the
extent that the absence of 'independence' would result in the impairment
of their core functions"[163];
(2) "[T]he Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed in the
discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is
anathema to fiscal autonomy and violative not only [of] the express
mandate of the Constitution, but especially as regards the Supreme
Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based";[164] and
(3) "[T]he constitutional deliberations explain the Constitutional
Commissions' need for independence. In the deliberations of the 1973
Constitution, the delegates amended the 1935 Constitution by providing
for a constitutionally-created Civil Service Commission, instead of one
created by law, on the premise that the effectivity of this body is
dependent on its freedom from the tentacles of politics. In a similar
manner, the deliberations of the 1987 Constitution on the Commission on
Audit highlighted the developments in the past Constitutions geared
towards insulating t h e C o m m i s s i o n o n A u d i t from political
pressure."[165]
At bottom, the decisive ruling in Gonzales III, however, was that the
independence of the Office of the Ombudsman, as well as that of the
foregoing independent bodies, meant freedom from control or
supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently
intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as these
bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential
interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192
SCRA 358), we emphasized that the Constitutional Commissions, which
have been characterized under the Constitution as "independent," are not
under the control of the President, even if they discharge functions that
are executive in nature. The Court declared as unconstitutional the
President's act of temporarily appointing the respondent in that case as
Acting Chairman of the [Commission on Elections] "however well-
meaning" it might have been.
I n Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court
categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be placed under
the discretionary power of the President.
xxxx
The kind of independence enjoyed by the Office of the Ombudsman
certainly cannot be inferior - but is similar in degree and kind - to the
independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political
interstices of a republican democracy that are crucial to its existence and
proper functioning.[166] (Emphases and underscoring supplied)
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which
provides that "[a] Deputy or the Special Prosecutor, may be removed from
office by the President for any of the grounds provided for the removal of
the Ombudsman, and after due process," partially unconstitutional insofar
as it subjected the Deputy Ombudsman to the disciplinary authority of the
President for violating the principle of independence. Meanwhile, the
validity of Section 8 (2), RA 6770 was maintained insofar as the Office of
the Special Prosecutor was concerned since said office was not
considered to be constitutionally within the Office of the Ombudsman and
is, hence, not entitled to the independence the latter enjoys under the
Constitution.[167]
As may be deduced from the various discourses in Gonzales III, the
concept of Ombudsman's independence covers three (3) things:
First: creation by the Constitution, which means that the office cannot
be abolished, nor its constitutionally specified functions and privileges, be
removed, altered, or modified by law, unless the Constitution itself allows,
or an amendment thereto is made;
Second: fiscal autonomy, which means that the office "may not be
obstructed from [its] freedom to use or dispose of [its] funds for purposes
germane to [its] functions;[168] hence, its budget cannot be strategically
decreased by officials of the political branches of government so as to
impair said functions; and
Third: insulation from executive supervision and control, which
means that those within the ranks of the office can only be disciplined by
an internal authority.
Evidently, all three aspects of independence intend to protect the Office of
the Ombudsman from political harassment and pressure, so as to free
it from the "insidious tentacles of politics."[169]
That being the case, the concept of Ombudsman independence cannot
be invoked as basis to insulate the Ombudsman from judicial power
constitutionally vested unto the courts. Courts are apolitical bodies, which
are ordained to act as impartial tribunals and apply even justice to all.
Hence, the Ombudsman's notion that it can be exempt from an incident of
judicial power - that is, a provisional writ of injunction against a preventive
suspension order - clearly strays from the concept's rationale of insulating
the office from political harassment or pressure.
B. The first paragraph of Section 14, RA
6770 in light of the powers of Congress and the
Court under the 1987 Constitution.
The Ombudsman's erroneous abstraction of her office's independence
notwithstanding, it remains that the first paragraph of Section 14, RA 6770
textually prohibits courts from extending provisional injunctive relief to
delay any investigation conducted by her office. Despite the usage of the
general phrase "[n]o writ of injunction shall be issued by any court," the
Ombudsman herself concedes that the prohibition does not cover the
Supreme Court.[170] As support, she cites the following Senate
deliberations:
Senator [Ernesto M.] Maceda. Mr. President, I do not know if an
amendment is necessary. I would just like to inquire for the record
whether below the Supreme Court, it is understood that there is no
injunction policy against the Ombudsman by lower courts. Or, is it
necessary to have a special paragraph for that?
Senator Angara. Well, there is no provision here, Mr. President, that will
prevent an injunction against the Ombudsman being issued.
Senator Maceda. In which case, I think that the intention, this being
one of the highest constitutional bodies, is to subject this only to
certiorari to the Supreme Court. I think an injunction from the
Supreme Court is, of course, in order but no lower courts should be
allowed to interfere. We had a very bad experience with even, let us
say, the Forestry Code where no injunction is supposed to be issued
against the Department of Natural Resources. Injunctions are issued
right and left by RTC judges all over the country.
The President. Why do we not make an express provision to that
effect?
Senator Angara. We would welcome that, Mr. President.
The President. No [writs of injunction] from the trial courts other
than the Supreme Court.
Senator Maceda. I so move, Mr. President, for that amendment.
The President. Is there any objection? [Silence] Hearing none, the same
is approved.[171]
Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article
VIII of the 1987 Constitution, acts of the Ombudsman, including
interlocutory orders, are subject to the Supreme Court's power of judicial
review As a corollary, the Supreme Court may issue ancillary mjunctive
writs or provisional remedies in the exercise of its power of judicial review
over matters pertaining to ongoing investigations by the Office of the
Ombudsman. Respecting the CA, however, the Ombudsman begs to
differ.[172]
With these submissions, it is therefore apt to examine the validity of the
first paragraph of Section 14, RA 6770 insofar as it prohibits all courts,
except this Court, from issuing provisional writs of injunction to enjoin an
Ombudsman investigation. That the constitutionality of this provision is
the lis mota of this case has not been seriously disputed. In fact, the issue
anent its constitutionality was properly raised and presented during the
course of these proceedings.[173] More importantly, its resolution is clearly
necessary to the complete disposition of this case.[174]
In the enduring words of Justice Laurel in Angara v. The Electoral
Commission (Angara),[175] the "Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive, the
legislative[,] and the judicial departments of the government."[176] The
constitutional demarcation of the three fundamental powers of
government is more commonly known as the principle of separation of
powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),[177] the
Court held that "there is a violation of the separation of powers principle
when one branch of government unduly encroaches on the domain of
another."[178] In particular, "there is a violation of the principle when there
is impermissible (a) interference with and/or (b) assumption of another
department's functions."[179]
Under Section 1, Article VIII of the 1987 Constitution, judicial power is
allocated to the Supreme Court and all such lower courts:
Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and 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.
This Court is the only court established by the Constitution, while all
other lower courts may be established by laws passed by Congress.
Thus, through the passage of Batas Pambansa Bilang (BP) 129,[180]
known as "The Judiciary Reorganization Act of 1980," the Court of
Appeals,[181] the Regional Trial Courts,[182] and the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts [183] were
established. Later, through the passage of RA 1125,[184] and Presidential
Decree No. (PD) 1486,[185] the Court of Tax Appeals, and the
Sandiganbayan were respectively established.
In addition to the authority to establish lower courts, Section 2, Article
VIII of the 1987 Constitution empowers Congress to define, prescribe,
and apportion the jurisdiction of all courts, except that it may not
deprive the Supreme Court of its jurisdiction over cases enumerated
in Section 5[186] of the same Article:
Section 2. The Congress shall have the power to define, prescribe, ' and
apportion the jurisdiction of the various courts but may not deprive the
Supreme Court of its jurisdiction over cases enumerated in Section 5
hereof.
xxxx
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction
over the subject matter of an action. In The Diocese of Bacolod v.
Commission on Elections,[187] subject matter jurisdiction was defined as
"the authority 'to hear and determine cases of the general class to
which the proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines its
powers.'"
Among others, Congress defined, prescribed, and apportioned the subject
matter jurisdiction of this Court (subject to the aforementioned
constitutional limitations), the Court of Appeals, and the trial courts,
through the passage of BP 129, as amended.
In this case, the basis for the CA's subject matter jurisdiction over
Binay, Jr.'s main petition for certiorari in CA-G.R. SP No. 139453 is
Section 9(1), Chapter I of BP 129, as amended:
Section 9. Jurisdiction. - The Court of Appeals shall exercise:
Original jurisdiction to issue writs of mandamus, prohibition, certiorari,
habeas corpus, a n d quo warranto, and auxiliary writs or
processes, whether or not in aid of its appellate jurisdiction[.]
Note that the CA's certiorari jurisdiction, as above-stated, is not only
original but also concurrent with the Regional Trial Courts (under
Section 21 (1), Chapter II of BP 129), and the Supreme Court (under
Section 5, Article VIII of the 1987 Philippine Constitution). In view of the
concurrence of these courts' jurisdiction over petitions for certiorari, the
doctrine of hierarchy of courts should be followed. In People v.
Cuaresma,[188] the doctrine was explained as follows:
[T]his concurrence of jurisdiction is not x x x to be taken as according
to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming
regard for that judicial hierarchy most certainly indicates that petitions for
the issuance of extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those against the latter,
with the Court of Appeals.[189]
When a court has subject matter jurisdiction over a particular case, as
conferred unto it by law, said court may then exercise its jurisdiction
acquired over that case, which is called judicial power.
Judicial power, as vested in the Supreme Court and all other courts
established by law, has been defined as the "totality of powers a court
exercises when it assumes jurisdiction and hears and decides a
case."[190] Under Section 1, Article VIII of the 1987 Constitution, it includes
"the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and 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."
In Oposa v. Factoran, Jr.[191] the Court explained the expanded scope of
judicial power under the 1987 Constitution:
The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred by law.
The second part of the authority represents a broadening of f judicial
power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions
of the executive and the legislature and to declare their acts invalid for
lack or excess of jurisdiction because they are tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave abuse of
discretion," which is a very elastic phrase that can expand or contract
according to the disposition of the judiciary.[192]
Judicial power is never exercised in a vacuum. A court's exercise of the
jurisdiction it has acquired over a particular case conforms to the
limits and parameters of the rules of procedure duly promulgated by
this Court. In other words, procedure is the framework within which
judicial power is exercised. In Manila Railroad Co. v. Attorney-General,[193]
the Court elucidated that "[t]he power or authority of the court over the
subject matter existed and was fixed before procedure in a given cause
began. Procedure does not alter or change that power or authority; it
simply directs the manner in which it shall be fully and justly
exercised. To be sure, in certain cases, if that power is not exercised in
conformity with the provisions of the procedural law, purely, the court
attempting to exercise it loses the power to exercise it legally. This does
not mean that it loses jurisdiction of the subject matter."[194]
While the power to define, prescribe, and apportion the jurisdiction of the
various courts is, by constitutional design, vested unto Congress, the
power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts belongs exclusively to this Court. Section 5
(5), Article VIII of the 1987 Constitution reads:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. (Emphases and underscoring supplied)
In Echegaray v. Secretary of Justice[195] (Echegaray), the Court traced the
evolution of its rule-making authority, which, under the 1935 [196] and 1973
Constitutions,[197] had been priorly subjected to a power-sharing scheme
with Congress.[198] As it now stands, the 1987 Constitution textually
altered the old provisions by deleting the concurrent power of
Congress to amend the rules, thus solidifying in one body the
Court's rule-making powers, in line with the Framers' vision of
institutionalizing a "[s]tronger and more independent judiciary."[199]
The records of the deliberations of the Constitutional Commission would
show[200] that the Framers debated on whether or not the Court's rule-
making powers should be shared with Congress. There was an initial
suggestion to insert the sentence "The National Assembly may repeal,
alter, or supplement the said rules with the advice and concurrence of the
Supreme Court", right after the phrase "Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the integrated
bar, and legal assistance to the underprivileged" in the enumeration of
powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino
proposed to delete the former sentence and, instead, after the word
"[underprivileged," place a comma (,) to be followed by "the phrase with
the concurrence of the National Assembly." Eventually, a compromise
formulation was reached wherein (a) the Committee members agreed to
Commissioner Aquino's proposal to delete the phrase "the National
Assembly may repeal, alter, or supplement the said rules with the advice
and concurrence of the Supreme Court" and (b) in turn, Commissioner
Aquino agreed to withdraw his proposal to add "the phrase with the
concurrence of the National Assembly." The changes were approved,
thereby leading to the present lack of textual reference to any form
of Congressional participation in Section 5 (5), Article VIII, supra.
The prevailing consideration was that "both bodies, the Supreme
Court and the Legislature, have their inherent powers."[201]
Thus, as it now stands, Congress has no authority to repeal, alter, or
supplement rules concerning pleading, practice, and procedure. As
pronounced in Echegaray:
The rule making power of this Court was expanded. This Court for the first
time was given the power to promulgate rules concerning the protection
and enforcement of constitutional rights. The Court was also r granted for
the first time the power to disapprove rules of procedure of special courts
and quasi-judicial bodies. But most importantly, the 1987 Constitution
took away the power of Congress to repeal, alter, or supplement
rules concerning pleading, practice and procedure. In fine, the
power to promulgate rules of pleading, practice and procedure is no
longer shared by this Court with Congress, more so with the
Executive.[202] (Emphasis and underscoring supplied)
Under its rule-making authority, the Court has periodically passed various
rules of procedure, among others, the current 1997 Rules of Civil
Procedure. Identifying the appropriate procedural remedies needed
for the reasonable exercise of every court's judicial power, the
provisional remedies of temporary restraining orders and writs of
preliminary injunction were thus provided.
A temporary restraining order and a writ of preliminary injunction both
constitute temporary measures availed of during the pendency of the
action. They are, by nature, ancillary because they are mere incidents in
and are dependent upon the result of the main action. It is well-settled
that the sole object of a temporary restraining order or a writ of
preliminary injunction, whether prohibitory or mandatory, is to
preserve the status quo[203] until the merits of the case can be heard.
They are usually granted when it is made to appear that there is a
substantial controversy between the parties and one of them is
committing an act or threatening the immediate commission of an act that
will cause irreparable injury or destroy the status quo of the controversy
before a full hearing can be had on the merits of the case. In other words,
they are preservative remedies for the protection of substantive rights or
interests, and, hence, not a cause of action in itself, but merely adjunct to
a main suit.[204] In a sense, they are regulatory processes meant to
prevent a case from being mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the
provisional remedies of a TRO and a WPI. A preliminary injunction is
defined under Section 1,[205] Rule 58, while Section 3 [206] of the same Rule
enumerates the grounds for its issuance. Meanwhile, under Section 5 [207]
thereof, a TRO may be issued as a precursor to the issuance of a writ of
preliminary injunction under certain procedural parameters.
The power of a court to issue these provisional injunctive reliefs coincides
with its inherent power to issue all auxiliary writs, processes, and
other means necessary to carry its acquired jurisdiction into effect
under Section 6, Rule 135 of the Rules of Court which reads:
Section 6. Means to carry jurisdiction into effect. - When by law
jurisdiction is conferred on a court or judicial officer, all auxiliary writs, f
processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed in
the exercise of such jurisdiction is not specifically pointed out by law [208] or
by these rules, any suitable process or mode of proceeding may be
adopted which appears comfortable to the spirit of the said law or rules.
I n City of Manila v. Grecia-Cuerdo,[209] which is a case involving "[t]he
supervisory power or jurisdiction of the [Court of Tax Appeals] to issue a
writ of certiorari in aid of its appellate jurisdiction"[210] over "decisions,
orders or resolutions of the RTCs in local tax cases originally decided or
resolved by them in the exercise of their original or appellate
jurisdiction,"[211] the Court ruled that said power "should coexist with, and
be a complement to, its appellate jurisdiction to review, by appeal, the
final orders and decisions of the RTC, in order to have complete
supervision over the acts of the latter:"[212]
A grant of appellate jurisdiction implies that there is included in it the
power necessary to exercise it effectively, to make all orders that ;
will preserve the subject of the action, and to give effect to the final
determination of the appeal. It carries with it the power to protect that
jurisdiction and to make the decisions of the court thereunder effective.
The court, in aid of its appellate jurisdiction, has authority to control all
auxiliary and incidental matters necessary to the efficient and proper
exercise of that jurisdiction. For this purpose, it may, when necessary,
prohibit or restrain the performance of any act which might interfere with
the proper exercise of its rightful jurisdiction in cases pending before it. [213]
(Emphasis supplied)
In this light, the Court expounded on the inherent powers of a court
endowed with subject matter jurisdiction:
[A] court which is endowed with a particular jurisdiction should have
powers which are necessary to enable it to act effectively within such
jurisdiction. These should be regarded as powers which are inherent
in its jurisdiction and the court must possess them in order to
enforce its rules of practice and to suppress any abuses of its
process and to t defeat any attempted thwarting of such process.
xxxx
Indeed, courts possess certain inherent powers which may be said to be
implied from a general grant of jurisdiction, in addition to those expressly
conferred on them. These inherent powers are such powers as are
necessary for the ordinary and efficient exercise of jurisdiction; or
are essential to the existence, dignity and functions of the courts, as
well as to the due administration of justice; or are directly
appropriate, convenient and suitable to the execution of their
granted powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the litigants. [214]
(Emphases and underscoring supplied)
Broadly speaking, the inherent powers of the courts resonates the long-
entrenched constitutional principle, articulated way back in the 1936 case
o f Angara, that "where a general power is conferred or duty enjoined,
every particular power necessary for the exercise of the one or the
performance of the other is also conferred."[215]
In the United States, the "inherent powers doctrine refers to the
principle, by which the courts deal with diverse matters over which they
are thought to have intrinsic authority like procedural [rule-making] and
general judicial housekeeping. To justify the invocation or exercise of
inherent powers, a court must show that the powers are reasonably
necessary to achieve the specific purpose for which the exercise is
sought. Inherent powers enable the judiciary to accomplish its
constitutionally mandated functions."[216]
In Smothers v. Lewis[217] (Smothers), a case involving the constitutionality
of a statute which prohibited courts from enjoining the enforcement of a
revocation order of an alcohol beverage license pending appeal, [218] the
Supreme Court of Kentucky held:
[T]he Court is x x x vested with certain "inherent" powers to do that
which is reasonably necessary for the administration of justice
within the scope of their jurisdiction. x x x [W]e said while considering
the rule making power and the judicial power to be one and the same that
". . . the grant of judicial power [rule making power] to the courts by
the constitution carries with it, as a necessary incident, the right to
make that power effective in the administration of justice."
(Emphases supplied)
Significantly, Smothers characterized a court's issuance of provisional
injunctive relief as an exercise of the court's inherent power, and to this
end, stated that any attempt on the part of Congress to interfere with the
same was constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt the
language framework of 28 Am.Jur.2d, Injunctions, Section 15, and once
and for all make clear that a court, once having obtained jurisdiction of a
cause of action, has, as an incidental to its constitutional grant of power,
inherent power to do all things reasonably necessary to the administration
of justice in the case before it. In the exercise of this power, a court,
when necessary in order to protect or preserve the subject matter of
the litigation, to protect its jurisdiction and to make its judgment
effective, may grant or issue a temporary injunction in aid of or
ancillary to the principal action.
The control over this inherent judicial power, in this particular
instance the injunction, is exclusively within the constitutional realm
of the courts. As such, it is not within the purview of the legislature
to grant or deny the power nor is it within the purview of the
legislature to shape or fashion circumstances under which this
inherently judicial power may be or may not be granted or denied.
This Court has historically recognized constitutional limitations upon the
power of the legislature to interfere with or to inhibit the performance of
constitutionally granted and inherently provided judicial functions, x x x
xxxx
We reiterate our previously adopted language, ". . . a court, once having
obtained jurisdiction of a cause of action, has, as incidental to its general
jurisdiction, inherent power to do all things reasonably necessary f to the
administration of justice in the case before it. . ." This includes the
inherent power to issue injunctions. (Emphases supplied)
Smothers also pointed out that the legislature's authority to provide a right
to appeal in the statute does not necessarily mean that it could control the
appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this appeal
does not give it the right to encroach upon the constitutionally granted
powers of the judiciary. Once the administrative action has ended and
the right to appeal arises the legislature is void of any right to
control a subsequent appellate judicial proceeding. The judicial
rules have come into play and have preempted the field. [219]
(Emphasis supplied)
With these considerations in mind, the Court rules that when Congress
passed the first paragraph of Section 14, RA 6770 and, in so doing, took
away from the courts their power to issue a TRO and/or WPI to enjoin an
investigation conducted by the Ombudsman, it encroached upon this
Court's constitutional rule-making authority. Clearly, these issuances,
which are, by nature, provisional reliefs and auxiliary writs created under
the provisions of the Rules of Court, are matters of procedure which
belong exclusively within the province of this Court. Rule 58 of the Rules
of Court did not create, define, and regulate a right but merely prescribed
the means of implementing an existing right[220] since it only provided for
temporary reliefs to preserve the applicant's right in esse which is
threatened to be violated during the course of a pending litigation. In the
case of Fabian,[221] it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule creates
a right such as the right to appeal, it may be classified as a substantive
matter; but if it operates as a means of implementing an existing right
then the rule deals merely with procedure.
Notably, there have been similar attempts on the part of Congress, in the
exercise of its legislative power, to amend the Rules of Court, as in the
cases of: (a) In Re: Exemption of The National Power Corporation from
Payment of Filing/ Docket Fees;[222] (b) Re: Petition for Recognition of the
Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees;[223] and (c) Baguio Market Vendors Multi-Purpose
Cooperative (BAMARVEMPCO) v. Cabato-Cortes[224] While these cases
involved legislative enactments exempting government owned and
controlled corporations and cooperatives from paying filing fees, thus,
effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees),
it was, nonetheless, ruled that the prerogative to amend, repeal or
even establish new rules of procedure [225] solely belongs to the
Court, to the exclusion of the legislative and executive branches of
government. On this score, the Court described its authority to
promulgate rules on pleading, practice, and procedure as exclusive and
"[o]ne of the safeguards of [its] institutional independence."[226]
That Congress has been vested with the authority to define, prescribe,
and apportion the jurisdiction of the various courts under Section 2, Article
VIII supra, as well as to create statutory courts under Section 1, Article
VIII supra, does not result in an abnegation of the Court's own power to
promulgate rules of pleading, practice, and procedure under Section 5 (5),
Article VIII supra. Albeit operatively interrelated, these powers are
nonetheless institutionally separate and distinct, each to be preserved
under its own sphere of authority. When Congress creates a court and
delimits its jurisdiction, the procedure for which its jurisdiction is
exercised is fixed by the Court through the rules it promulgates. The
first paragraph of Section 14, RA 6770 is not a jurisdiction-vesting
provision, as the Ombudsman misconceives,[227] because it does not
define, prescribe, and apportion the subject matter jurisdiction of courts to
act on certiorari cases; the certiorari jurisdiction of courts, particularly the
CA, stands under the relevant sections of BP 129 which were not shown
to have been repealed. Instead, through this provision, Congress
interfered with a provisional remedy that was created by this Court
under its duly promulgated rules of procedure, which utility is both
integral and inherent to every court's exercise of judicial power.
Without the Court's consent to the proscription, as may be
manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor, there
thus, stands to be a violation of the separation of powers principle.
In addition, it should be pointed out that the breach of Congress in
prohibiting provisional injunctions, such as in the first paragraph of
Section 14, RA 6770, does not only undermine the constitutional
allocation of powers; it also practically dilutes a court's ability to carry
out its functions. This is so since a particular case can easily be
mooted by supervening events if no provisional injunctive relief is
extended while the court is hearing the same. Accordingly, the court's
acquired jurisdiction, through which it exercises its judicial power, is
rendered nugatory. Indeed, the force of judicial power, especially under
the present Constitution, cannot be enervated due to a court's inability to
regulate what occurs during a proceeding's course. As earlier intimated,
when jurisdiction over the subject matter is accorded by law and has been
acquired by a court, its exercise thereof should be undipped. To give true
meaning to the judicial power contemplated by the Framers of our
Constitution, the Court's duly promulgated rules of procedure should
therefore remain unabridged, this, even by statute. Truth be told, the
policy against provisional injunctive writs in whatever variant should only
subsist under rules of procedure duly promulgated by the Court given its
sole prerogative over the same.
The following exchange between Associate Justice Marvic Mario Victor F.
Leonen (Justice Leonen) and the Acting Solicitor General Florin T. Hilbay
(Acting Solicitor General Hilbay) mirrors the foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of
Court?
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.
JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I
will be mistaken under the rubric of what is called provisional remedies,
our resident expert because Justice Peralta is not here so Justice
Bersamin for a while. So provisional remedy you have injunction, x x x.
xxxx
 is it part of litigation in an ordinary case?
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of ACTING SOLICITOR GENERAL HILBAY:
Article VIII of the Constitution, if you have a copy of the Constitution, can It is an ancillary remedy, Your Honor.
you please read that provision? Section 5, Article VIII the Judiciary
subparagraph 5, would you kindly read that provision? JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?
ACTING SOLICTOR GENERAL HILBAY.
"Promulgate rules concerning the protection and enforcement of ACTING SOLICITOR GENERAL HILBAY:
constitutional rights, pleading, practice and procedure in all courts..." Correct, Your Honor.

JUSTICE LEONEN: JUSTICE LEONEN:

Okay, we can stop with that, promulgate rules concerning pleading, In order to preserve the power of a court so that at the end of
practice and procedure in all courts. This is the power, the competence, litigation, it will not be rendered moot and academic, is that not
the jurisdiction of what constitutional organ? correct?

ACTING SOLICITOR GENERAL HILBAY: ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor. Correct, Your Honor.

JUSTICE LEONEN: JUSTICE LEONEN:

The Supreme Court. This is different from Article VIII Sections 1 and 2 In that view, isn't Section 14, first paragraph, unconstitutional?
which we've already been discussed with you by my other colleagues, is
that not correct? ACTING SOLICITOR GENERAL HILBAY:
No, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor. xxxx

JUSTICE LEONEN: JUSTICE LEONEN.

Okay, so in Section 2, [apportion] jurisdiction that is the power of Can Congress say that a Court cannot prescribe Motions to Dismiss
Congress, is that not correct? under Rule 16?

ACTING SOLICITOR GENERAL HILBAY: ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor. Your Honor, Congress cannot impair the power of the Court to create
remedies, x x x.
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that JUSTICE LEONEN.
not correct? What about bill [of] particulars, can Congress say, no Court shall have the
power to issue the supplemental pleading called the bill of t particular [s]?
ACTING SOLICITOR GENERAL HILBAY: It cannot, because that's part of procedure...
Correct, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
JUSTICE LEONEN: That is true.
A TRO and a writ of preliminary injunction, would it be a separate case or
JUSTICE LEONEN powers are distributed among the several departments. The Constitution
...or for that matter, no Court shall act on a Motion to Quash, is that not is the basic and paramount law to which all other laws must conform and
correct? to which all persons, including the highest officials of the land, must
defer." It would then follow that laws that do not conform to the
ACTING SOLICITOR GENERAL HILBAY: Constitution shall be stricken down for being unconstitutional.[230]
Correct.
However, despite the ostensible breach of the separation of powers
JUSTICE LEONEN: principle, the Court is not oblivious to the policy considerations behind the
So what's different with the writ of injunction? first paragraph of Section 14, RA 6770, as well as other statutory
provisions of similar import. Thus, pending deliberation on whether or not
ACTING SOLICITOR GENERAL HILBAY: to adopt the same, the Court, under its sole prerogative and authority over
Writ of injunction, Your Honor, requires the existence of jurisdiction on the all matters of procedure, deems it proper to declare as ineffective the
part of a court that was created by Congress. In the absence of prohibition against courts other than the Supreme Court from issuing
jurisdiction... (interrupted) provisional injunctive writs to enjoin investigations conducted by the Office
of the Ombudsman, until it is adopted as part of the rules of procedure
JUSTICE LEONEN: through an administrative circular duly issued therefor.
No, writ of injunction does not attach to a court. In other words, when they
create a special agrarian court it has all procedures with it but it does not Hence, with Congress interfering with matters of procedure (through
attach particularly to that particular court, is that not correct? passing the first paragraph of Section 14, RA 6770) without the Court's
consent thereto, it remains that the CA had the authority to issue the
ACTING SOLICTOR GENERAL HILBAY: questioned injunctive writs enjoining the implementation of the preventive
When Congress, Your Honor, creates a special court... suspension order against Binay, Jr. At the risk of belaboring the point,
these issuances were merely ancillary to the exercise of the CA's
JUSTICE LEONEN: certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP
Again, Counsel, what statute provides for a TRO, created the concept of a 129, as amended, and which it had already acquired over the main CA-
TRO? It was a Rule. A rule of procedure and the Rules of Court, is that G.R. SP No. 139453 case.
not correct?
IV.
ACTING SOLICITOR GENERAL HILBAY:
Yes, Your Honor. The foregoing notwithstanding, the issue of whether or not the CA gravely
abused its jurisdiction in issuing the TRO and WPI in CA-G.R. SP No.
JUSTICE LEONEN: 139453 against the preventive suspension order is a persisting objection
And a TRO and a writ of preliminary injunction does not exist unless it is to the validity of said injunctive writs. For its proper analysis, the Court
[an] ancillary to a particular injunction in a court, is that not correct? first provides the context of the assailed injunctive writs.

ACTING SOLICITOR GENERAL HILBAY: A . Subject matter of the CA's iniunctive writs is the preventive
Correct, Your Honor. suspension order.

xxxx[228] (Emphasis supplied)
I n Biraogo v. The Philippine Truth Commission of 2010,[229] the Court
instructed that "[i]t is through the Constitution that the fundamental powers
of government are established, limited and defined, and by which these
By nature, a preventive suspension order is not a penalty but only a
preventive measure. In Quimbo v. Acting Ombudsman Gervacio,[231] the
Court explained the distinction, stating that its purpose is to prevent the
official to be suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper
with records which may be vital in the prosecution of the case
against him:
Jurisprudential law establishes a clear-cut distinction between suspension
as preventive measure and suspension as penalty. The distinction, by
considering the purpose aspect of the suspensions, is readily cognizable
as they have different ends sought to be achieved.
Preventive suspension is merely a preventive measure, a
preliminary step in an administrative investigation. The purpose of
the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence
potential witnesses or tamper with records which may be vital in the
prosecution of the case against him. If after such investigation, the
charge is established and the person investigated is found guilty of acts
warranting his suspension or removal, then he is suspended, removed or
dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly provided by
Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the
Administrative Code of 1987 (Executive Order No. 292) and other
Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for
misconduct in office but is considered to be a preventive measure.
(Emphasis supplied)
Not being a penalty, the period within which one is under preventive
suspension is not considered part of the actual penalty of suspension. So
Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer or employee charged
is placed under preventive suspension shall not be considered part of
the actual penalty of suspension imposed upon the employee found
guilty.[232] (Emphases supplied)
The requisites for issuing a preventive suspension order are explicitly
stated in Section 24, RA 6770:
Section 24. Preventive Suspension. - The Ombudsman or his Deputy may
preventively suspend any officer or employee under his authority pending
an investigation, if in his judgment the evidence of guilt is strong, and
(a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of
duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case
filed against him.
The preventive suspension shall continue until the case is terminated by
the Office of the Ombudsman but not more than six (6) months, without
pay, except when the delay in the disposition of the case by the Office of
the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis and
underscoring supplied)
In other words, the law sets forth two (2) conditions that must be satisfied
to justify the issuance of an order of preventive suspension pending an
investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first
requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty;
(b) The charge would warrant removal from the service; or
(c) The respondent's continued stay in office may prejudice the case filed
against him.[233]
B. The basis of the CA's injunctive writs is the condonation doctrine.
Examining the CA's Resolutions in CA-G.R. SP No. 139453 would,
however, show that the Ombudsman's non-compliance with the requisites
provided in Section 24, RA 6770 was not the basis for the issuance of the
assailed injunctive writs.
The CA's March 16, 2015 Resolution which directed the issuance of the
assailed TRO was based on the case of Governor Garcia, Jr. v. CA[234]
(Governor Garcia, Jr.), wherein the Court emphasized that "if it were
established in the CA that the acts subject of the administrative complaint
were indeed committed during petitioner [Garcia's] prior term, then,
following settled jurisprudence, he can no longer be administratively
charged."[235] Thus, the Court, contemplating the application of the
condonation doctrine, among others, cautioned, in the said case, that "it
would have been more prudent for [the appellate court] to have, at the
very least, on account of the extreme urgency of the matter and the
seriousness of the issues raised in the certiorari petition, issued a TRO x
x x"[236] during the pendency of the proceedings.
Similarly, the CA's April 6, 2015 Resolution which directed the issuance of
the assailed WPI was based on the condonation doctrine, citing the case
of Aguinaldo v. Santos[237] The CA held that Binay, Jr. has an ostensible
right to the final relief prayed for, i.e., the nullification of the preventive
suspension order, finding that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his re-election in 2013
as City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from
2007 to 2013.[238] Moreover, the CA observed that although there were
acts which were apparently committed by Binay, Jr. beyond his first term ,
i.e., the alleged payments on July 3, 4, and 24, 2013, [239] corresponding to
the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v.
Guingona, Jr.,[240] and Mayor Garcia v. Mojica,[241] wherein the
condonation dobtrine was applied by the Court although the payments
were made after the official's election, reasoning that the payments were
merely effected pursuant to contracts executed before said re-election.[242]
The Ombudsman contends that it was inappropriate for the CA to have
considered the condonation doctrine since it was a matter of defense
which should have been raised and passed upon by her office during the
administrative disciplinary proceedings.[243] However, the Court agrees
with the CA that it was not precluded from considering the same given
that it was material to the propriety of according provisional injunctive
relief in conformity with the ruling in Governor Garcia, Jr., which was the
subsisting jurisprudence at that time. Thus, since condonation was duly
raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453, [244] the CA
did not err in passing upon the same. Note that although Binay, Jr.
secondarily argued that the evidence of guilt against him was not strong
in his petition in CA-G.R. SP No. 139453,[245] it appears that the CA found
that the application of the condonation doctrine was already sufficient to
enjoin the implementation of the preventive suspension order. Again,
there is nothing aberrant with this since, as remarked in the same case of
Governor Garcia, Jr., if it was established that the acts subject of the
administrative complaint were indeed committed during Binay, Jr.'s prior
term, then, following the condonation doctrine, he can no longer be
administratively charged. In other words, with condonation having been
invoked by Binay, Jr. as an exculpatory affirmative defense at the onset,
the CA deemed it unnecessary to determine if the evidence of guilt
against him was strong, at least for the purpose of issuing the subject
injunctive writs.
With the preliminary objection resolved and the basis of the assailed writs
herein laid down, the Court now proceeds to determine if the CA gravely
abused its discretion in applying the condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined as "[a] victim's
express or implied forgiveness of an offense, [especially] by treating the
offender as if there had been no offense."[246]
The condonation doctrine - which connotes this same sense of complete
extinguishment of liability as will be herein elaborated upon - is not based
on statutory law. It is a jurisprudential creation that originated from the
1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija,[247]
(Pascual), which was therefore decided under the 1935 Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San
Jose, Nueva Ecija, sometime in November 1951, and was later re-elected
to the same position in 1955. During his second term, or on October 6,
1956, the Acting Provincial Governor filed administrative charges before
the Provincial Board of Nueva Ecija against him for grave abuse of
authority and usurpation of judicial functions for acting on a criminal
complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In
defense, Arturo Pascual argued that he cannot be made liable for the acts
charged against him since they were committed during his previous term
of office, and therefore, invalid grounds for disciplining him during his
second term. The Provincial Board, as well as the Court of First Instance
of Nueva Ecija, later decided against Arturo Pascual, and when the case
reached this Court on appeal, it recognized that the controversy posed a
novel issue - that is, whether or not an elective official may be disciplined
for a wrongful act committed by him during his immediately preceding
term of office.
As there was no legal precedent on the issue at that time, the Court, in
Pascual, resorted to American authorities and "found that cases on the
matter are conflicting due in part, probably, to differences in statutes and
constitutional provisions, and also, in part, to a divergence of views with
respect to the question of whether the subsequent election or
appointment condones the prior misconduct."[248] Without going into the
variables of these conflicting views and cases, it proceeded to state
that:

The weight of authorities x x x seems to incline toward the rule
denying the right to remove one from office because of misconduct
during a prior term, to which we fully subscribe.[249] (Emphasis and
underscoring supplied)
The conclusion is at once problematic since this Court has now
uncovered that there is really no established weight of authority in the
United States (US) favoring the doctrine of condonation, which, in the
words of Pascual, theorizes that an official's re-election denies the right to
remove him from office due to a misconduct during a prior term. In fact, as
pointed out during the oral arguments of this case, at least seventeen (17)
states in the US have abandoned the condonation doctrine.[250] The
Ombudsman aptly cites several rulings of various US State courts, as well
as literature published on the matter, to demonstrate the fact that the
doctrine is not uniformly applied across all state jurisdictions. Indeed, the
treatment is nuanced:
(1) For one, it has been widely recognized that the propriety of removing a
public officer from his current term or office for misconduct which he
allegedly committed in a prior term of office is governed by the language
of the statute or constitutional provision applicable to the facts of a
particular case (see In Re Removal of Member of Council Coppola).[251] As
an example, a Texas statute, on the one hand, expressly allows removal
only for an act committed during a present term: "no officer shall be
prosecuted or removed from office for any act he may have committed
prior to his election to office" (see State ex rel. Rowlings v. Loomis).[252] On
the other hand, the Supreme Court of Oklahoma allows removal from
office for "acts of commission, omission, or neglect committed, done or
omitted during a previous or preceding term of office" (see State v. Bailey)
[253] Meanwhile, in some states where the removal statute is silent or
unclear, the case's resolution was contingent upon the interpretation of
the phrase "in office." On one end, the Supreme Court of Ohio strictly
construed a removal statute containing the phrase "misfeasance of
malfeasance in office" and thereby declared that, in the absence of clear
legislative language making, the word "office" must be limited to the single
term during which the offense charged against the public officer occurred
( s e e State ex rel. Stokes v. Probate Court of Cuyahoga County)[254]
Similarly, the Common Pleas Court of Allegheny County, Pennsylvania
decided that the phrase "in office" in its state constitution was a time
limitation with regard to the grounds of removal, so that an officer could
not be removed for misbehaviour which occurred; prior to the taking of the
office (see Commonwealth v. Rudman)[255] The opposite was construed in
the Supreme Court of Louisiana which took the view that an officer's
inability to hold an office resulted from the commission of certain offenses,
and at once rendered him unfit to continue in office, adding the fact that
the officer had been re-elected did not condone or purge the offense (see
State ex rel. Billon v. Bourgeois).[256] Also, in the Supreme Court of New
York, Apellate Division, Fourth Department, the court construed the words
"in office" to refer not to a particular term of office but to an entire tenure;
it stated that the whole purpose of the legislature in enacting the statute in
question could easily be lost sight of, and the intent of the law-making
body be thwarted, if an unworthy official could not be removed during one
term for misconduct for a previous one (Newman v. Strobel).[257]
(2) For another, condonation depended on whether or not the public
officer was a successor in the same office for which he has been
administratively charged. The "own-successor theory," which is
recognized in numerous States as an exception to condonation doctrine,
is premised on the idea that each term of a re-elected incumbent is not
taken as separate and distinct, but rather, regarded as one continuous
term of office. Thus, infractions committed in a previous term are grounds
for removal because a re-elected incumbent has no prior term to speak
of[258] (see Attorney-General v. Tufts;[259] State v. Welsh;[260] Hawkins v.
Common Council of Grand Rapids;[261] Territory v. Sanches;[262] and Tibbs
v. City of Atlanta).[263]
(3) Furthermore, some State courts took into consideration the continuing
nature of an offense in cases where the condonation doctrine was
invoked. In State ex rel. Douglas v. Megaarden,[264] the public officer
charged with malversation of public funds was denied the defense of
condonation by the Supreme Court of Minnesota, observing that "the
large sums of money illegally collected during the previous years are still
retained by him." In State ex rel. Beck v. Harvey[265] the Supreme Court of
Kansas ruled that "there is no necessity" of applying the condonation
doctrine since "the misconduct continued in the present term of office[;]
[thus] there was a duty upon defendant to restore this money on demand
of the county commissioners." Moreover, in State ex rel. Londerholm v.
Schroeder,[266] the Supreme Court of Kansas held that "insofar as
nondelivery and excessive prices are concerned, x x x there remains a
continuing duty on the part of the defendant to make restitution to the
country x x x, this duty extends into the present term, and neglect to
discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary conclusion
i n Pascual that there is a "weight of authority" in the US on the
condonation doctrine. In fact, without any cogent exegesis to show that
Pascual had accounted for the numerous factors relevant to the debate
on condonation, an outright adoption of the doctrine in this jurisdiction
would not have been proper.
At any rate, these US cases are only of persuasive value in the process of
this Court's decision-making. "[They] are not relied upon as precedents,
but as guides of interpretation."[267] Therefore, the ultimate analysis is on
whether or not the condonation doctrine, as espoused in Pascual, and
carried over in numerous cases after, can be held up against prevailing
legal norms. Note that the doctrine of stare decisis does not preclude this
Court from revisiting existing doctrine. As adjudged in the case of Belgica,
t h e stare decisis rule should not operate when there are powerful
countervailing considerations against its application.[268] In other words,
stare decisis becomes an intractable rule only when circumstances exist
to preclude reversal of standing precedent.[269] As the Ombudsman
correctly points out, jurisprudence, after all, is not a rigid, atemporal
abstraction; it is an organic creature that develops and devolves along
with the society within which it thrives.[270] In the words of a recent US
Supreme Court Decision, "[w]hat we can decide, we can undecide."[271]
In this case, the Court agrees with the Ombudsman that since the time
Pascual was decided, the legal landscape has radically shifted. Again,
Pascual was a 1959 case decided under the 1935 Constitution, which
dated provisions do not reflect the experience of the Filipino People under
the 1973 and 1987 Constitutions. Therefore, the plain difference in
setting, including, of course, the sheer impact of the condonation doctrine
on public accountability, calls for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in
which the public officer was elected for each term is separate and distinct:
Offenses committed, or acts done, during previous term are
generally held not to furnish cause for removal and this is especially
true where the constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from office, and
disqualification from holding office for the term for which the officer
was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161
S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex rel.
Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher
County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula,
147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x
x x.[272]
Second, an elective official's re-election serves as a condonation of
previous misconduct, thereby cutting the right to remove him therefor; and
[T]hat the reelection to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to remove him
therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63
So. 559, 50 L.R.A. (NS) 553.[273] (emphasis supplied)
Third, courts may not deprive the electorate, who are assumed to have
known the life and character of candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R.
281, 63 So. 559, 50 LRA (NS) 553 —
The Court should never remove a public officer for acts done prior to his
present term of office. To do otherwise would be to deprive the people of
their right to elect their officers. When the people have elected a man to
office, it must be assumed that they did this with knowledge of his
life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court, by
reason of such faults or misconduct to practically overrule the will of the
people.[274] (Emphases supplied)
The notable cases on condonation following Pascual are as follows:
(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the Court first
applied the condonation doctrine, thereby quoting the above-stated
passages from Pascual in verbatim.
(2) Insco v. Sanchez, et al.[276] (December 18, 1967) - wherein the Court
clarified that the condonation doctrine does not apply to a criminal
case. It was explained that a criminal case is different from an
administrative case in that the former involves the People of the
Philippines as a community, and is a public wrong to the State at large;
whereas, in the latter, only the populace of the constituency he serves is
affected. In addition, the Court noted that it is only the President who may
pardon a criminal offense.
(3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a case
decided under the 1987 Constitution wherein the condonation doctrine
was applied in favor of then Cagayan Governor Rodolfo E. Aguinaldo
although his re-election merely supervened the pendency of, the
proceedings.
(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996) -wherein the
Court reinforced the condonation doctrine by stating that the same is
justified by "sound public policy." According to the Court, condonation
prevented the elective official from being "hounded" by administrative
cases filed by his "political enemies" during a new term, for which he has
to defend himself "to the detriment of public service." Also, the Court
mentioned that the administrative liability condoned by re-election
covered the execution of the contract and the incidents related therewith.
[279]
(5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10, 1999) -
wherein the benefit of the doctrine was extended to then Cebu City Mayor
Alvin B. Garcia who was administratively charged for his involvement in
an anomalous contract for the supply of asphalt for Cebu City, executed
only four (4) days before the upcoming elections. The Court ruled that
notwithstanding the timing of the contract's execution, the electorate is
presumed to have known the petitioner's background and character,
including his past misconduct; hence, his subsequent re-election was
deemed a condonation of his prior transgressions. More importantly, the
Court held that the determinative time element in applying the
condonation doctrine should be the time when the contract was perfected;
this meant that as long as the contract was entered into during a
prior term, acts which were done to implement the same, even if
done during a succeeding term, do not negate the application of the
condonation doctrine in favor of the elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman [281] (Salumbides, Jr.;
April 23, 2010) - wherein the Court explained the doctrinal innovations in
the Salalima and Mayor Garcia rulings, to wit:
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the
doctrine. The condonation rule was applied even if the administrative
complaint was not filed before the reelection of the public official,
and even if the alleged misconduct occurred four days before the
elections, respectively. Salalima did not distinguish as to the date of
filing of the administrative complaint, as long as the alleged misconduct
was committed during the prior term, the precise timing or period of which
Garcia did not further distinguish, as long as the wrongdoing that gave
rise to the public official's culpability was committed prior to the date of
reelection.[282] (Emphasis supplied)
The Court, citing Civil Service Commission v. Sojor,[283] also clarified that
the condonation doctrine would not apply to appointive officials
since, as to them, there is no sovereign will to disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr.
-wherein the Court remarked that it would have been prudent for the
appellate court therein to have issued a temporary restraining order
against the implementation of a preventive suspension order issued by
the Ombudsman in view of the condonation doctrine.
A thorough review of the cases post-1987, among others, Aguinaldo,
Salalima, Mayor Garcia, and Governor Garcia, Jr. - all cited by the CA to
justify its March 16, 2015 and April 6, 2015 Resolutions directing the
issuance of the assailed injunctive writs - would show that the basis for
condonation under the prevailing constitutional and statutory framework
was never accounted for. What remains apparent from the text of these
cases is that the basis for condonation, as jurisprudential doctrine, was -
and still remains - the above-cited postulates of Pascual, which was lifted
from rulings of US courts where condonation was amply supported by
their own state laws. With respect to its applicability to administrative
cases, the core premise of condonation - that is, an elective official's re-
election cuts qff the right to remove him for an administrative offense
committed during a prior term - was adopted hook, line, and sinker in our
jurisprudence largely because the legality of that doctrine was never
tested against existing legal norms. As in the US, the propriety of
condonation is - as it should be -dependent on the legal foundation of the
adjudicating jurisdiction. Hence, the Court undertakes an examination of
our current laws in order to determine if there is legal basis for the
continued application of the doctrine of condonation.
The foundation of our entire legal system is the Constitution. It is the
supreme law of the land;[284] thus, the unbending rule is that every statute
should be read in light of the Constitution. [285] Likewise, the Constitution is
a framework of a workable government; hence, its interpretation must
take into account the complexities, realities, and politics attendant to the
operation of the political branches of government.[286]
As earlier intimated, Pascual was a decision promulgated in 1959.
Therefore, it was decided within the context of the 1935 Constitution
which was silent with respect to public accountability, or of the nature of
public office being a public trust. The provision in the 1935 Constitution
that comes closest in dealing with public office is Section 2, Article II
which states that "[t]he defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens may be required
by law to render personal military or civil service." [287] Perhaps owing to
the 1935 Constitution's silence on public accountability, and considering
the dearth of jurisprudential rulings on the matter, as well as the variance
in the policy considerations, there was no glaring objection confronting the
Pascual Court in adopting the condonation doctrine that originated from
select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with
public officers underwent a significant change. The new charter
introduced an entire article on accountability of public officers, found in
Article XIII. Section 1 thereof positively recognized, acknowledged, and
declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic
officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency, and shall remain
accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have
framed and adopted the 1987 Constitution, which sets forth in the
Declaration of Principles and State Policies in Article II that "[t]he State
shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."[288]
Learning how unbridled power could corrupt public servants under the
regime of a dictator, the Framers put primacy on the integrity of the public
service by declaring it as a constitutional principle and a State policy.
More significantly, the 1987 Constitution strengthened and solidified what
has been first proclaimed in the 1973 Constitution by commanding public
officers to be accountable to the people at all times:
Section 1. Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency and act with
patriotism and justice, and lead modest lives.
In Belgica, it was explained that:
[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution,
which states that "public office is a public trust," is an overarching
reminder that every instrumentality of government should exercise their
official functions only in accordance with the principles of the Constitution
which embodies the parameters of the people's trust. The notion of a
public trust connotes accountability x x x.[289] (Emphasis supplied)
The same mandate is found in the Revised Administrative Code under the
section of the Civil Service Commission,[290] and also, in the Code of
Conduct and Ethical Standards for Public Officials and Employees.[291]
For local elective officials like Binay, Jr., the grounds to discipline,
suspend or remove an elective local official from office are stated in
Section 60 of Republic Act No. 7160,[292] otherwise known as the "Local
Government Code of 1991" (LGC), which was approved on October 10
1991, and took effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. - An elective local official may
be disciplined, suspended, or removed from office on any of the r
following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or
dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense
punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days,
except in the case of members of the sangguniang panlalawigan,
sangguniang panlunsod, sanggunian bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the
status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court.
Related to this provision is Section 40 (b) of the LGC which states that
those removed from office as a result of an administrative case shall
be disqualified from running for any elective local position:
Section 40. Disqualifications. - The following persons are disqualified from
running for any elective local position:
xxxx
(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied)
In the same sense, Section 52 (a) of the RRACCS provides that the
penalty of dismissal from service carries the accessory penalty of
perpetual disqualification from holding public office:
Section 52. - Administrative Disabilities Inherent in Certain Penalties. -
The penalty of dismissal shall carry with it cancellation of eligibility,
forfeiture of retirement benefits, perpetual disqualification from
holding public office, and bar from taking the civil service
examinations.
In contrast, Section 66 (b) of the LGC states that the penalty of
suspension shall not exceed the unexpired term of the elective local
official nor constitute a bar to his candidacy for as long as he meets the
qualifications required for the office. Note, however, that the provision
only pertains to the duration of the penalty and its effect on the official's
candidacy. Nothing therein states that the administrative liability
therefor is extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x.
xxxx
(b) The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense,
nor shall said penalty be a bar to the candidacy of the respondent so
suspended as long as he meets the qualifications required for the office.
Reading the 1987 Constitution together with the above-cited legal
provisions now leads this Court to the conclusion that the doctrine of
condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the
corollary requirement of accountability to the people at all times, as
mandated under the 1987 Constitution, is plainly inconsistent with the
idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was
elected to a second term of office, or even another elective post. Election
is not a mode of condoning an administrative offense, and there is
simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any
administrative liability arising from an offense done during a prior term. In
this jurisdiction, liability arising from administrative offenses may be
condoned bv the President in light of Section 19, Article VII of the 1987
Constitution which was interpreted in Llamas v. Orbos[293] to apply to
administrative offenses:
The Constitution does not distinguish between which cases executive
clemency may be exercised by the President, with the sole exclusion of
impeachment cases. By the same token, if executive clemency may be
exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of
Article VII, Section 19 of the Constitution. Following petitioner's proposed
interpretation, cases of impeachment are automatically excluded
inasmuch as the same do not necessarily involve criminal offenses.
In the same vein, We do not clearly see any valid and convincing , reason
why the President cannot grant executive clemency in administrative
cases. It is Our considered view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures in criminal
cases, with much more reason can she grant executive clemency in
administrative cases, which are clearly less serious than criminal
offenses.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for
discipline enumerated therein cannot anymore be invoked against an
elective local official to hold him administratively liable once he is re-
elected to office. In fact, Section 40 (b) of the LGC precludes condonation
since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position
due to a direct disqualification from running for such post. In similar
regard, Section 52 (a) of the RRACCS imposes a penalty of perpetual
disqualification from holding public office as an accessory to the penalty
of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US
State jurisdictions wherein the doctrine of condonation of administrative
liability was supported by either a constitutional or statutory provision
stating, in effect, that an officer cannot be removed by a misconduct
committed during a previous term,[294] or that the disqualification to hold
the office does not extend beyond the term in which the official's
delinquency occurred.[295] In one case,[296] the absence of a provision
against the re-election of an officer removed - unlike Section 40 (b) of the
LGC-was the justification behind condonation. In another case,[297] it was
deemed that condonation through re-election was a policy under their
constitution - which adoption in this jurisdiction runs counter to our
present Constitution's requirements on public accountability. There was
even one case where the doctrine of condonation was not adjudicated
upon but only invoked by a party as a ground;[298] while in another case,
which was not reported in full in the official series, the crux of the
disposition was that the evidence of a prior irregularity in no way
pertained to the charge at issue and therefore, was deemed to be
incompetent.[299] Hence, owing to either their variance or inapplicability,
none of these cases can be used as basis for the continued adoption of
the condonation doctrine under our existing laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the
penalty of suspension beyond the unexpired portion of the elective local
official's prior term, and likewise allows said official to still run for re-
election This treatment is similar to People ex rel Bagshaw v.
Thompson[300] and Montgomery v. Novell[301] both cited in Pascual, wherein
it was ruled that an officer cannot be suspended for a misconduct
committed during a prior term. However, as previously stated, nothing in
Section 66 (b) states that the elective local official's administrative liability
is extinguished by the fact of re-election. Thus, at all events, no legal
provision actually supports the theory that the liability is condoned.
Relatedly it should be clarified that there is no truth in Pascual's
postulation that the courts would be depriving the electorate of their right
to elect their officers if condonation were not to be sanctioned. In political
law, election pertains to the process by which a particular constituency
chooses an individual to hold a public office. In this jurisdiction, there is,
again, no legal basis to conclude that election automatically implies
condonation. Neither is there any legal basis to say that every democratic
and republican state has an inherent regime of condonation. If
condonation of an elective official's administrative liability would perhaps,
be allowed in this jurisdiction, then the same should have been provided
by law under our governing legal mechanisms. May it be at the time of
Pascual or at present, by no means has it been shown that such a law,
whether in a constitutional or statutory provision, exists. Therefore,
inferring from this manifest absence, it cannot be said that the electorate's
will has been abdicated.
Equally infirm is Pascual's proposition that the electorate, when re-
electing a local official, are assumed to have done so with knowledge of
his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule. [302] Besides, it is
contrary to human experience that the electorate would have full
knowledge of a public official's misdeeds. The Ombudsman correctly
points out the reality that most corrupt acts by public officers are shrouded
in secrecy, and concealed from the public. Misconduct committed by an
elective official is easily covered up, and is almost always unknown
to the electorate when they cast their votes.[303] At a conceptual level,
condonation presupposes that the condoner has actual knowledge of
what is to be condoned. Thus, there could be no condonation of an
act that is unknown. As observed in Walsh v. City Council of Trenton[304]
decided by the New Jersey Supreme Court:
Many of the cases holding that re-election of a public official prevents his
removal for acts done in a preceding term of office are reasoned out on
the theory of condonation. We cannot subscribe to that theory because
condonation, implying as it does forgiveness, connotes knowledge and in
the absence of knowledge there can be no condonation. One cannot
forgive something of which one has no knowledge.
That being said, this Court simply finds no legal authority to sustain the
condonation doctrine in this jurisdiction. As can be seen from this
discourse, it was a doctrine adopted from one class of US rulings way
back in 1959 and thus, out of touch from - and now rendered obsolete by
- the current legal regime. In consequence, it is high time for this Court to
abandon the condonation doctrine that originated from Pascual, and
affirmed in the cases following the same, such as Aguinaldo, Salalima,
Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the
CA.
It should, however, be clarified that this Court's abandonment of the
condonation doctrine should be prospective in application for the reason
that judicial decisions applying or interpreting the laws or the Constitution,
until reversed, shall form part of the legal system of the Philippines. [305]
Unto this Court devolves the sole authority to interpret what the
Constitution means, and all persons are bound to follow its interpretation.
As explained in De Castro v. Judicial Bar Council.[306]
Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those
called upon to abide by them, but also of those duty-bound to enforce
obedience to them.[307]
Hence, while the future may ultimately uncover a doctrine's error, it should
be, as a general rule, recognized as "good law" prior to its abandonment.
Consequently, the people's reliance thereupon should be respected. The
landmark case on this matter is People v. Jabinal,[308] wherein it was ruled:
[W]hen a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively, and should
not apply to parties who had relied on the old doctrine and acted on the
faith thereof.
Later, in Spouses Benzonan v. CA,[309] it was further elaborated:
[Pursuant to Article 8 of the Civil Code "judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines." But while our decisions form part of the law of
the land, they are also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect unless the contrary is
provided." This is expressed in the familiar legal maxim lex prospicit, non
respicit, the law looks forward not backward. The rationale against
retroactivity is easy to perceive. The retroactive application of a law
usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional.[310]
Indeed, the lessons of history teach us that institutions can greatly benefit
from hindsight and rectify its ensuing course. Thus, while it is truly
perplexing to think that a doctrine which is barren of legal anchorage was
able to endure in our jurisprudence for a considerable length of time, this
Court, under a new membership, takes up the cudgels and now abandons
the condonation doctrine.
E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether or
not the CA committed grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed injunctive writs.
It is well-settled that an act of a court or tribunal can only be considered
as with grave abuse of discretion when such act is done in a
capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by
reason of passion and hostility.[311] It has also been held that "grave
abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence."[312]
As earlier established, records disclose that the CA's resolutions directing
the issuance of the assailed injunctive writs were all hinged on cases
enunciating the condonation doctrine. To recount, the March 16, 2015
Resolution directing the issuance of the subject TRO was based on the
case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing
the issuance of the subject WPI was based on the cases of Aguinaldo,
Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely
following settled precedents on the condonation doctrine, which at that
time, unwittingly remained "good law," it cannot be concluded that the CA
committed a grave abuse of discretion based on its legal attribution
above. Accordingly, the WPI against the Ombudsman's preventive
suspension order was correctly issued.
With this, the ensuing course of action should have been for the CA to
resolve the main petition for certiorari in CA-G.R. SP No. 139453 on the
merits. However, considering that the Ombudsman, on October 9, 2015,
had already found Binay, Jr. administratively liable and imposed upon him
the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative
charges against him, the said CA petition appears to have been mooted.
[313] As initially intimated, the preventive suspension order is only an
ancillary issuance that, at its core, serves the purpose of assisting the
Office of the Ombudsman in its investigation. It therefore has no more
purpose - and perforce, dissolves - upon the termination of the office's
process of investigation in the instant administrative case.
F. Exceptions to the mootness principle.
This notwithstanding, this Court deems it apt to clarify that the mootness
of the issue regarding the validity of the preventive suspension order
subject of this case does not preclude any of its foregoing determinations,
particularly, its abandonment of the condonation doctrine. As explained in
Belgica, '"the moot and academic principle' is not a magical formula that
can automatically dissuade the Court in resolving a case. The Court will
decide cases, otherwise moot, 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 the 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."[314] All of these scenarios obtain in this case:
First, it would be a violation of the Court's own duty to uphold and defend
the Constitution if it were not to abandon the condonation doctrine now
that its infirmities have become apparent. As extensively discussed, the
continued application of the condonation doctrine is simply impermissible
under the auspices of the present Constitution which explicitly mandates
that public office is a public trust and that public officials shall be
accountable to the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential creation
that has persisted as a defense of elective officials to escape
administrative liability. It is the first time that the legal intricacies of this
doctrine have been brought to light; thus, this is a situation of exceptional
character which this Court must ultimately resolve. Further, since the
doctrine has served as a perennial obstacle against exacting public
accountability from the multitude of elective local officials throughout the
years, it is indubitable that paramount public interest is involved.
Third, the issue on the validity of the condonation doctrine clearly
requires the formulation of controlling principles to guide the bench, the
bar, and the public. The issue does not only involve an in-depth exegesis
of administrative law principles, but also puts to the forefront of legal
discourse the potency of the accountability provisions of the 1987
Constitution. The Court owes it to the bench, the bar, and the public to
explain how this controversial doctrine came about, and now, its reasons
for abandoning the same in view of its relevance on the parameters of
public office.
And fourth, the defense of condonation has been consistently invoked by
elective local officials against the administrative charges filed against
them. To provide a sample size, the Ombudsman has informed the Court
that "for the period of July 2013 to December 2014 alone, 85 cases from
the Luzon Office and 24 cases from the Central Office were dismissed on
the ground of condonation. Thus, in just one and a half years, over a
hundred cases of alleged misconduct - involving infractions such as
dishonesty, oppression, gross neglect of duty and grave misconduct -
were placed beyond the reach of the Ombudsman's investigatory and
prosecutorial powers."[315] Evidently, this fortifies the finding that the case
is capable of repetition and must therefore, not evade review.
In any event, the abandonment of a doctrine is wholly within the
prerogative of the Court. As mentioned, it is its own jurisprudential
creation and may therefore, pursuant to its mandate to uphold and defend
the Constitution, revoke it notwithstanding supervening events that render
the subject of discussion moot.
V.
With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the
Court now rules on the final issue on whether or not the CA's
Resolution[316] dated March 20, 2015 directing the Ombudsman to
comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504
is improper and illegal.
The sole premise of the Ombudsman's contention is that, as an
impeachable officer, she cannot be the subject of a charge for indirect
contempt[317] because this action is criminal in nature and the penalty
therefor would result in her effective removal from office. [318] However, a
reading of the aforesaid March 20, 2015 Resolution does not show that
she has already been subjected to contempt proceedings. This issuance,
in? fact, makes it clear that notwithstanding the directive for the
Ombudsman to comment, the CA has not necessarily given due
course to Binay, Jr.'s contempt petition:
Without necessarily giving due course to the Petition for Contempt
respondents [Hon. Conchita Carpio Morales, in her capacity as the
Ombudsman, and the Department of Interior and Local Government] are
hereby DIRECTED to file Comment on the Petition/Amended and
Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an
inextendible period of three (3) days from receipt hereof. (Emphasis and
underscoring supplied)
Thus, even if the Ombudsman accedes to the CA's directive by filing a
comment, wherein she may properly raise her objections to the contempt
proceedings by virtue of her being an impeachable officer, the CA, in the
exercise of its sound judicial discretion, may still opt not to give due
course to Binay, Jr.'s contempt petition and accordingly, dismiss the
same. Sjmply put, absent any indication that the contempt petition has
been given due course by the CA, it would then be premature for this
Court to rule on the issue. The submission of the Ombudsman on this
score is perforce denied.
WHEREFORE, the petition is PARTLY GRANTED. Under the premises
of this Decision, the Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is
declared UNCONSTITUTIONAL, while the policy against the issuance of
provisional injunctive writs by courts other than the Supreme Court to
enjoin an investigation conducted by the Office of the Ombudsman under
the first paragraph of the said provision is DECLARED ineffective until the
Court adopts the same as part of the rules of procedure through an
administrative circular duly issued therefor;

(b) The condonation doctrine is ABANDONED, but the abandonment is

PROSPECTIVE in effect;

(c) The Court of Appeals (CA) is DIRECTED to act on respondent

Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) petition for certiorari in CA-G.R.
SP No. 139453 in light of the Office of the Ombudsman's supervening
issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr.
administratively liable in the six (6) administrative complamts, docketed as
OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-
15-0061, OMB-C-A-15-0062, and OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's

comment, the CA is DIRECTED to resolve Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504 with utmost dispatch.

SO ORDERED.
EN BANC
G.R. No. 69137, August 05, 1986
FELIMON LUEGO, PETITIONER-APPELLANT, VS. CIVIL SERVICE
COMMISSION AND FELICULA TUOZO, RESPONDENTS-APPELLEES.
DECISION
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 II, Office of the City
Mayor, Cebu City, by Mayor Florentino Solon on February 18, 1983. [1] The
appointment was described as "permanent" but the Civil Service
Commission approved it as "temporary," subject to the final action taken
in the protest filed by the private respondent and another employee, and
provided "there (was) no pending administrative case against the
appointee, no pending protest against the appointment nor any decision
by competent authority that will adversely affect the approval of the
appointment."[2] On March 22, 1984, after protracted hearings the legality
of which does not have to be decided here, the Civil Service Commission
found the private respondent better qualified than the petitioner for the
contested position and, accordingly, directed "that Felicula Tuozo be
appointed to the position of Administrative Officer II in the Administrative
Division, Cebu City, in place of Felimon Luego whose appointment as
Administrative Officer II is hereby revoked." [3] The private respondent was
so appointed on June 28, 1984, by the new mayor, Mayor Ronald
Duterte.[4] The petitioner, invoking his earlier permanent appointment, is
now before us to question that order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to
disapprove a permanent appointment on the ground that another person
is better qualified than the appointee and, on the basis of this finding,
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.
The stamping of the words "APPROVED as TEMPORARY" did not
change the character of the appointment, which was clearly described as
"Permanent" in the space provided for in Civil Service Form No. 33, dated
February 18, 1983.[7] What was temporary was the approval of the
appointment, not the appointment itself. And what made the approval
temporary was the fact that it was made to depend on the condition
specified therein and on the verification of the qualifications of the
appointee to the position.
The Civil Service Commission is not empowered to determine the kind of
nature of the appointment extended by the appointing officer, its authority
being limited to approving or reviewing the appointment in the light of the
requirements of the Civil Service Law. When the appointee is qualified
and all the other legal requirements are satisfied, the Commission has no
choice but to attest to the appointment in accordance with the Civil
Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
"It is well settled that the determination of the kind of appointment to be
extended lies in the official vested by law with the appointing power and
not the Civil Service Commission. The Commissioner of Civil Service is
not empowered to determine the kind or nature of the appointment
extended by the appointing officer. When the appointee is qualified, as in
this case, the Commissioner of Civil Service has no choice but to attest to
the appointment. Under the Civil Service Law, Presidential Decree No.
807, the Commissioner is not authorized to curtail the discretion of the
appointing official on the nature or kind of the appointment to be
extended."[8]
Indeed, the approval is more appropriately called an attestation, that is, of
the fact that the appointee is qualified for the position to which he has
been named. As we have repeatedly held, such attestation is required of
the Commissioner of Civil Service merely as a check to assure
compliance with Civil Service laws.[9]
Appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide.
It is different where the Constitution or the law subjects the appointment
to the approval of another officer or body, like the Commission on
Appointments under 1935 Constitution.[10] Appointments made by the
President of the Philippines had to be confirmed by that body and could
not be issued or were invalidated without such confirmation. In fact,
confirmation by the Commission on Appointments was then considered
part of the appointing process, which was held complete only after such
confirmation.[11]
Moreover, the Commission on Appointments could review the wisdom of
the appointment and had the power to refuse to concur with it even if the
President's choice possessed all the qualifications prescribed by law. No
similar arrangement is provided for in the Civil Service Decree. On the
contrary, the Civil Service Commission is limited only to the non-
discretionary authority of determining whether or not the person appointed
meets all the required conditions laid down by the law.
It is understandable if one is likely to be misled by the language of Section
9(h) of Article V of the Civil Service Decree because it says the
Commission has the power to "approve" and "disapprove" appointments.
Thus, it is provided therein that the Commission shall have inter alia the
power to:
" 9( h ) Approve all appointments, whether original or promotional, to
positions in the civil service, the 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, reemployment,
or appointment of outsiders who have the appropriate eligibility.[13]
There are apparently no political overtones in this case, which looks to be
an honest contention between two public functionaries who each
sincerely claims to be entitled to the position in dispute. This is gratifying
for politics should never be permitted to interfere in the apolitical
organization of the Civil Service, which is supposed to serve all the
people regardless of partisan considerations. This political detachment
will be impaired if the security of tenure clause in the Constitution is
emasculated and appointments in the Civil Service are revoked and
changed at will to suit the motivations and even the fancies of whatever
party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil
Service dated March 22, 1984, is set aside, and the petitioner is hereby
declared to be entitled to the office in dispute by virtue of his permanent
appointment thereto dated February 18, 1983. No costs.
LUEGO VS CSC
Felimon Luego was appointed by Mayor Solon as Administrative Officer
II. His appointment was described as permanent, but CSC approved it on
a temporary basis subjecting it to the final action to be taken on the
protest filed by Felicula Tuazo. Subsequently, CSC found Tuazo to be
better qualified than Luego and directed that Tuazo be instead appointed.
Luego questioned this.

SC: CSC has no authority to revoke said appointment simply because it

believed that Tuazo was better qualified, for that would have constituted
an encroachment on the discretion vested solely in the City Mayor.
Appointment is essentially a discretionary power and must be performed
by the power on which it is vested. The only condition being that the
appointee should possess the qualification 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.

LUEGO DOCTRINE:
This is a political question involving consideration of wisdom which only
the appointing authority may determine. For as long as the appointee has
the minimum requirements, the CSC and the SC are powerless to render
that a better one is more qualified.