G.R. No. 116418 March 7, 1995 1.

The OCSS [Office of Career Systems and Standards], OPIA [Office of Personnel
SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners,
vs.
HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA,
Commissioner, Civil Service Commission, respondents.
Inspection and Audit] and OPR [Office of Personnel Relations] are merged to form
the Research and Development Office (RDO).
2. The Office for Human Resource Development (OHRD) is renamed Human
Resource Development Office (HRDO).

FELICIANO, J.:
In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a
Temporary Restraining Order, petitioners Salvador C. Fernandez and Anicia M. de
Lima assail the validity of Resolution No. 94-3710 of the Civil Service Commission
("Commission") and the authority of the Commission to issue the same.
3. The following functions and the personnel assigned to the unit performing said
functions are hereby transferred to HRDO:
a. Administration of the Honor and Awards program under OCSS;
b. Registration and Accreditation of Unions under OPR; and
c. Accreditation of Agencies to take final action on appointments under OPIA.

Petitioner Fernandez was serving as Director of the Office of Personnel Inspection 4. The Office for Central Personnel Records (OCPR) is renamed Management
and Audit ("OPIA") while petitioner de Lima was serving as Director of the Office of Information Office (MIO).
the Personnel Relations ("OPR"), both at the Central Office of the Civil Service
Commission in Quezon City, Metropolitan Manila. While petitioners were so 5. The Information technology functions of OPM and the personnel assigned to the
serving, Resolution No. 94-3710 signed by public respondents Patricia A.. Sto. unit are transferred to MIO.
Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively, of the
Commission, was issued on 7 June 1994.1 Resolution No. 94-3710 needs to be
6. The following functions of OPM and the personnel assigned to the unit
quoted in full:
performing said functions are hereby transferred to the Office of the Executive
Director:
RESOLUTION NO. 94-3710
a. Financial Audit and Evaluation;
WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". . . as an
independent constitutional body, the Commission may effect changes in the
b. Internal Management and Improvement;
organization as the need arises;"
c. Research and Statistics; and
WHEREAS, the Commission finds it imperative to effect changes in the organization
to streamline its operations and improve delivery of public service;
d. Planning and Programming.
WHEREAS, the Commission finds it necessary to immediately effect changes in the
7. The library service and its personnel under OCPR are transferred to the Central
organization of the Central Offices in view of the need to implement new programs
Administrative Office.
in lieu of those functions which were transferred to the Regional Offices;

8. The budget allocated for the various functions shall be transferred to the Offices
WHEREFORE, foregoing premises considered, the Commission hereby RESOLVES to
where the functions are transferred. Records, fixtures and equipment that go with
effect the following changes in its organization, specifically in the Central Offices:
the functions shall be moved to where the functions are transferred.

Annex A contains the manning list for all the offices, except the OCES.
The changes in the organization and in operations shall take place before end of July (1) Whether or not the Civil Service Commission had legal authority to issue
1994. Resolution No. 94-3710 to the extent it merged the OCSS [Office of Career Systems
and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR
Done in Quezon City, July 07, 1994. [Office of Personnel Relations], to form the RDO [Research and Development
Office]; and
(Signed)
Patricia A. Sto. Tomas (2) Whether or not Resolution No. 94-3710 violated petitioners' constitutional right
Chairman to security of tenure.

(Signed) Did not participate I.

Ramon P. Ereneta, Jr., Thelma P. Gaminde
Commissioner Commissioner The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July
1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure and
Attested by: organization of the Commission in the following terms:
(Signed)
Carmencita Giselle B. Dayson Sec. 16. Offices in the Commission — The Commission shall have
Board Secretary V 2 the following offices:

During the general assembly of officers and employees of the Commission held in (1) The Office of the Executive Director — . . .
the morning of 28 July 1994, Chairman Sto. Tomas, when apprised of objections of
petitioners, expressed the determination of the Commission to implement (2) The Merit System Protection Board — . . .
Resolution No. 94-3710 unless restrained by higher authority.
(3) The Office of Legal Affairs — . . .
Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the
Court required public respondents to file a Comment on the Petition. On 21 (4) The Office of Planning and Management — . . .
September 1994, petitioners filed an Urgent Motion for Issuance of a Temporary
Restraining Order, alleging that petitioners had received Office Orders from the
(5) The Central Administrative Office — . . .
Commission assigning petitioner Fernandez to Region V at Legaspi City and
petitioner de Lima to Region III in San Fernando, Pampanga and praying that public
(6) The Office of Central Personnel Records — . . .
respondents be restrained from enforcing these Office Orders. The Court, in a
Resolution dated 27 September 1994, granted this Motion and issued the
Temporary Restraining Order prayed for by petitioners. (7) The Office of Position Classification and
Compensation — . . .
The Commission filed its own Comment, dated 12 September 1994, on the Petition
and then moved to lift the Temporary Restraining Order. The Office of the Solicitor (8) The Office of Recruitment, Examination and
General filed a separate Comment dated 28 November 1994, defending the validity Placement — . . .
of Resolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed
separate Replies to these Comments. The Commission in turn filed a Rejoinder (9) The Office of Career Systems and Standards shall provide leadership and
(denominated "Comment [on] the Reply"). assistance in the formulation and evaluation of personnel systems and standards
relative to performance appraisal, merit promotion and employee incentive
The principal issues raised in this Petition are the following: benefits and awards.

(10) The Office of Human Resource Development — . . .

(11) The Office of Personnel Inspection and Audit shall develop policies, standards,
rules and regulations for the effective conduct of inspection and audit of personnel
and personnel management programs and the exercise of delegated authority;
provide technical and advisory services to Civil Service Regional Offices and
government agencies in the implementation of their personnel programs and
evaluation systems.
(12) The Office of Personnel Relations shall provide leadership and assistance in the
development and implementation of policies, standards, rules and regulations
governing corporate officials and employees in the areas of recruitment,
examination, placement, career development, merit and awards systems, position
classification and compensation, performance appraisal, employee welfare and
benefits, discipline and other aspects of personnel management on the basis of
comparable industry practices.
(13) The Office of the Corporate Affairs — . . .
(14) The Office of Retirement Administration — . . .
(15) The Regional and Field Offices. — . . . (Emphases in the original)
Immediately after the foregoing listing of offices of the Commission and their
respective functions, the 1987 Revised Administrative Code goes on to provide as
follows:
Sec. 17. Organizational Structure. — Each office of the Commission shall be headed
by a Director with at least one (1) Assistant Director, and may have such divisions as
are necessary to carry out their respective functions. As an independent
constitutional body, the Commission may effect chances in the organization as the
need arises.
Examination of the foregoing statutory provisions reveals that the OCSS, OPIA and
OPR, and as well each of the other Offices listed in Section 16 above, consist of
aggregations of Divisions, each of which Divisions is in turn a grouping of Sections.
Each Section, Division and Office comprises a group of positions within the agency
called the Civil Service Commission, each group being entrusted with a more or less
definable function or functions. These functions are related to one another, each of
them being embraced by a common or general subject matter. Clearly, each Office
is an internal department or organizational unit within the Commission and that
accordingly, the OCSS, OPIA and OPR, as well as all the other Offices within the
Commission constitute administrative subdivisions of the CSC. Put a little
differently, these offices relate to the internal structure of the Commission.
What did Resolution No. 94-3710 of the Commission do? Examination of Resolution
No. 94-3710 shows that thereby the Commission re-arranged some of the
administrative units (i.e., Offices) within the Commission and, among other things,
merged three (3) of them (OCSS, OPIA and OPR) to form a new grouping called the
"Research and Development Office (RDO)." The same Resolution renamed some of
the Offices of the Commission, e.g., the Office for Human Resource Development
(OHRD) was renamed Human Resource Development Office (HRDO); the Office for
Central Personnel Records (OCPR) was renamed Management Information Office
(MIO). The Commission also re-allocated certain functions moving some functions
from one Office to another; e.g., the information technology function of OPM
(Office of Planning and Management) was transferred to the newly named
Management Information Office (MIO). This re-allocation or re-assignment of some
functions carried with it the transfer of the budget earmarked for such function to
the Office where the function was transferred. Moreover, the personnel, records,
fixtures and equipment that were devoted to the carrying out of such functions
were moved to the Offices to where the functions were transferred.
The objectives sought by the Commission in enacting Resolution No. 94-3710 were
described in that Resolution in broad terms as "effect[ing] changes in the
organization to streamline [the Commission's] operations and improve delivery of
service." These changes in internal organization were rendered necessary by, on the
one hand, the decentralization and devolution of the Commission's functions
effected by the creation of fourteen (14) Regional Offices and ninety-five (95) Field
Offices of the Commission throughout the country, to the end that the Commission
and its staff may be brought closer physically to the government employees that
they are mandated to serve. In the past, its functions had been centralized in the
Head Office of the Commission in Metropolitan Manila and Civil Service employees
all over the country were compelled to come to Manila for the carrying out of
personnel transactions. Upon the other hand, the dispersal of the functions of the
Commission to the Regional Offices and the Field Offices attached to various
governmental agencies throughout the country makes possible the implementation
of new programs of the Commission at its Central Office in Metropolitan Manila.
The Commission's Office Order assigning petitioner de Lima to the CSC Regional
Office No. 3 was precipitated by the incumbent Regional Director filing an
application for retirement, thus generating a need to find a replacement for him.
Petitioner de Lima was being assigned to that Regional Office while the incumbent
Regional Director was still there to facilitate her take over of the duties and
functions of the incumbent Director. Petitioner de Lima's prior experience as a labor
lawyer was also a factor in her assignment to Regional Office No. 3 where public
sector unions have been very active. Petitioner Fernandez's assignment to the CSC
Regional Office No. 5 had, upon the other hand, been necessitated by the fact that
the then incumbent Director in Region V was under investigation and needed to be
transferred immediately to the Central Office. Petitioner Fernandez was deemed
the most likely designee for Director of Regional Office No. 5 considering that the
functions previously assigned to him had been substantially devolved to the
Regional Offices such that his reassignment to a Regional Office would result in the
least disruption of the operations of the Central Office.4
It thus appears to the Court that the Commission was moved by quite legitimate
considerations of administrative efficiency and convenience in promulgating and
implementing its Resolution No. 94-3710 and in assigning petitioner Salvador C.
Fernandez to the Regional Office of the Commission in Region V in Legaspi City and
petitioner Anicia M. de Lima to the Commission's Regional Office in Region III in San
Fernando, Pampanga. It is also clear to
the Court that the changes introduced and formalized through Resolution No. 94-
3710 — re-naming of existing Offices; re-arrangement of the groupings of Divisions
and Sections composing particular Offices; re-allocation of existing functions (and
related personnel; budget, etc.) among the re-arranged Offices — are precisely the
kind of internal changes which are referred to in Section 17 (Book V, Title I, Subtitle
A, Chapter 3) of the 1987 Revised Administrative Code), quoted above, as "chances
in the organization" of the Commission.
Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public
offices, something which may be done only by the same legislative authority which
had created those public offices in the first place.
The Court is unable, in the circumstances of this case, to accept this argument. The
term "public office" is frequently used to refer to the right, authority and duty,
created and conferred by law, by which, for a given period either fixed by law or
enduring at the pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of government, to be exercised by that individual
for the benefit of the public.5 We consider that Resolution No. 94-3710
has not abolished any public office as that term is used in the law of public
officers.6 It is essential to note that none of the "changes in organization"
introduced by Resolution No. 94-3710 carried with it or necessarily involved
the termination of the relationship of public employment between the Commission
and any of its officers and employees. We find it very difficult to suppose that the
1987 Revised Administrative Code having mentioned fourteen (14) different
"Offices" of the Civil Service Commission, meant to freeze those Offices and to cast
in concrete, as it were, the internal organization of the commission until it might
please Congress to change such internal organization regardless of the ever
changing needs of the Civil Service as a whole. To the contrary, the legislative
authority had expressly authorized the Commission to carry out "changes in the
organization," as the need [for such changes] arises." 7 Assuming, for purposes of
argument merely, that legislative authority was necessary to carry out the kinds off
changes contemplated in Resolution No. 94-3710 (and the Court is not saying that
such authority is necessary), such legislative authority was validly delegated to the
Commission by Section 17 earlier quoted. The legislative standards to be observed
and respected in the exercise of such delegated authority are set out not only in
Section 17 itself (i.e., "as the need arises"), but also in the Declaration of Policies
found in Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative
Code which required the Civil Service Commission
as the central personnel agency of the Government [to] establish a
career service, adopt measures to promote — efficiency — [and] responsiveness . . .
in the civil service . . . and that personnel functions shall be decentralized,
delegating the corresponding authority to the departments, offices and agencies
where such functions can be effectively performed. (Emphasis supplied)
II.
We turn to the second claim of petitioners that their right to security of tenure was
breached by the respondents in promulgating Resolution No. 94-3710 and ordering
petitioners' assignment to the Commission's Regional Offices in Regions III and V.
Section 2(3) of Article IX(B) of the 1987 Constitution declared that "no officer or
employee of the Civil Service shall be removed or suspended except for cause
provided by law." Petitioners in effect contend that they were unlawfully removed
from their positions in the OPIA and OPR by the implementation of Resolution No.
94-3710 and that they cannot, without their consent, be moved out to the Regional
Offices of the Commission.
We note, firstly, that appointments to the staff of the Commission are not
appointments to a specified public office but rather appointments to particular
positions or ranks. Thus, a person may be appointed to the position of Director III or
Director IV; or to the position of Attorney IV or Attorney V; or to the position of
Records Officer I or Records Officer II; and so forth. In the instant case, petitioners
were each appointed to the position of Director IV, without specification of any
particular office or station. The same is true with respect to the other persons
holding the same position or rank of Director IV of the Commission.
Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code
recognizes reassignment as a management prerogative vested in the Commission
and, for that matter, in any department or agency of government embraced in the
civil service:
Sec. 26. Personnel Actions. — . . .
As used in this Title, any action denoting the movement or progress of personnel in
the civil service shall be known as personnel action. Such action shall include
appointment through certification, promotion, transfer, re-instatement, re-
employment, detail, reassignment, demotion, and separation. All personnel actions
shall be in accordance with such rules, standards, and regulations as may be
promulgated by the Commission.
(7) Reassignment. An employee may be re-assigned from one organizational unit to
another in the same agency, Provided, That such re-assignment shall not involve
a reduction in rank status and salary. (Emphasis supplied)
It follows that the reassignment of petitioners Fernandez and de Lima from their
previous positions in OPIA and OPR, respectively, to the Research and Development
Office (RDO) in the Central Office of the Commission in Metropolitan Manila and
their subsequent assignment from the RDO to the Commission's Regional Offices in
Regions V and III had been effected with express statutory authority and did not
constitute removals without lawful cause. It also follows that such re-assignment
did not involve any violation of the constitutional right of petitioners to security of
tenure considering that they retained their positions of Director IV and would
continue to enjoy the same rank, status and salary at their new assigned stations
which they had enjoyed at the Head Office of the Commission in Metropolitan
Manila. Petitioners had not, in other words, acquired a vested right to serve at the
Commission's Head Office.
Secondly, the above conclusion is compelled not only by the statutory provisions
relevant in the instant case, but also by a long line of cases decided by this Court in
respect of different agencies or offices of government.
In one of the more recent of these cases, Department of Education Culture and
Sports, etc., et al. v. Court of Appeals, et al.,8 this Court held that a person who had
been appointed as "Secondary School Principal II" in the Division of City Schools,
District II, Quezon City, National Capital Region, and who had been stationed as
High School Principal in the Carlos Albert High School in Quezon for a number of
years, could lawfully be reassigned or transferred to the Manuel Roxas High School,
also in Quezon City, without demotion in rank or diminution of salry. This Court
held:
The aforequoted provision of Republic Act No. 4670 particularly Section 6 thereof
which provides that except for cause and in the exigencies of the service no teacher
shall be transferred without his consent from one station to another, finds no
application in the case at bar as this is predicated upon the theory that the teacher
concerned is appointed — not merely assigned — to a particular station. Thus:
The rule pursued by plaintiff only goes so far as
the appointed indicates a specification. Otherwise, the constitutionally ordained
security of tenure cannot shield her. In appointments of this nature, this Court has
consistently rejected the officer's demand to remain — even as public service
dictates that a transfer be made — in a particular station. Judicial attitude toward
transfers of this nature is expressed in the following statement in Ibañez, et
al. vs. Commission on Elections, et al. (G.R. No.
L-26558, April 27, 1967; 19 SCRA 1002 [1967]);That security of tenure is an essential
and constitutionally guaranteed feature of our Civil Service System, is not open to
debate. The mantle of its protection extends not only against removals without
cause but also against unconsented transfer which, as repeatedly enunciatEd, are
tantamount to removals which are within the ambit of the fundamental
guarantee. However, the availability of that security of tenure necessarily depends,
in the first instance, upon the nature of the appointment (Hojilla vs. Marino, 121
Phil. 280 [1965].) Such that the rule which proscribes transfers without consent as
anathema to the security of tenure is predicated upon the theory that the officer
involved is appointed — not merely assigned — to a particular station(Miclat v.
Ganaden, et al., 108 Phil. 439 [1960]; Jaro v. Hon. Valencia, et al., 118 Phil. 728
[1963]). [Brillantes v. Guevarra, 27 SCRA 138 (1969)] The appointment of Navarro as
principal does not refer to any particular station or school. As such, she could be
assigned to any station and she is not entitled to stay permanently at any specific
school. (Bongbong v. Parado, 57 SCRA 623) When she was assigned to the Carlos
Albert High School, it could not have been with the intention to let her stay in said
school permanently. Otherwise, her appointment would have so stated.
Consequently, she may be assigned to any station or school in Quezon City as the
exigencies of public service require even without consent. As this Court ruled
in Brillantes v. Guevarra, 27 SCRA 138,
143 —Plaintiff's confident stride falters. She took too loose a view of the applicable
jurispr udence. Her refuge behind the mantle of security of tenure guaranteed by
the Constitution is not impenetrable. She proceeds upon the assumption that she
occupies her station in Sinalang Elementary School by appointment. But her first
appointment as Principal merely reads thus: "You are hereby appointed a Principal
(Elementary School) in the Bureau of Public Schools, Department of
Education", without mentioning her station. She cannot therefore claim security of
tenure as Principal of Sinalang Elementary School or any particular station. She may
be assigned to any station as exigency of public service requires, even without her
consent. She thus has no right of choice.9 (Emphasis supplied; citation omitted)
In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et
a1., 10 the Court addressed appointments of petitioners as "Mediators-Arbiters in
the National Capital Region" in dismissing a challenge on certiorari to resolutions of
the CSC and orders of the Secretary of Labor. The Court said:
Petitioners were appointed as Mediator Arbiters in the National Capital
Region. They were not, however, appointed to a specific station or particular unit of
the Department of Labor in the National Capital Region (DOLE-NCR).
Consequently, they can always be reassigned from one organizational unit to
another of the same agency where, in the opinion of respondent Secretary, their
services may be used more effectively. As such they can neither claim a vested right
to the station to which they were assigned nor to security of tenure thereat. As
correctly observed by the Solicitor General, petitioners' reassignment is not a
transfer for they were not removed from their position as med-arbiters. They were
not given new appointments to new positions. It indubitably follows, therefore, that
Memorandum Order No. 4 ordering their reassignment in the interest of the service
is legally in order.11 (Emphases supplied)
In Quisumbing v. Gumban, 12 the Court, dealing with an appointment in the Bureau
of Public Schools of the Department of Education, Culture and Sports, ruled as
follows:
After a careful scrutiny of the records, it is to be underscored that the appointment
of private respondent Yap is simply that of a District Supervisor of the Bureau of
Public Schools which does not indicate a specific station (Rollo, p. 13). A such, she
could be assigned to any station and she is no entitled to stay permanently at any
specific station (Bongbong v. Parado, 57 SCRA 623 [1974]; Department of Education,
Culture and Sports v. Court of Appeals [G.R. 81032, March 22, 1990] citing Brillantes
v. Guevarra [27 SCRA 138 [1969]). 13
Again, in Ibañez v. Commission on Elections, 14 the Court had before it petitioners'
appointments as "Election Registrars in the Commission of Elections," without any
intimation to what city, municipality or municipal district they had been appointed
as such. 15 The Court held that since petitioners "were not appointed to, and
consequently not entitled to any security of tenure or permanence in, any specific
station," "on general principles, they [could] be transferred as the exigencies of the
service required," and that they had no right to complain against any change in
assignment. The Court further held that assignment to a particular station after
issuance of the appointment was not necessary to complete such appointment:
. . . . We cannot subscribe to the theory that an assignment to a particular station, in
the light of the terms of the appointments in question, was necessary to complete
the said appointments. The approval thereof by the Commissioner of Civil Service
gave those appointments the stamp of finality.With the view that the respondent
Commission then took of its power in the premises and the demand of the mission
it set out to accomplish with the appointments it extended, said appointments were
definitely meant to be complete as then issued. The subsequent assignment of the
appointees thereunder that the said respondent Commission held in reserve to be
exercised as the needs of each locality justified did not in any way detract from the
perfection attained by the appointments beforehand. And the respective appointees
were entitled only to such security of tenure as the appointment papers concerned
actually conferred — not in that of any place to which they may have been
subsequently assigned. . . . As things stand, in default of any particular station
stated in their respective appointments, no security of tenure can be asserted by the
petitioners on the basis of the mere assignments which were given to them. A
contrary rule will erase altogether the demarcation line we have repeatedly drawn
between appointment and assignment as two distinct concepts in the law of public
officers. 16 (Emphases supplied)
The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare Office
Incharge, Division of Urban, Rural and Community Administration, Social Welfare
Administration." She was assigned as Social Welfare Incharge of the Mountain
Province, by an office order of the Administrator, Social Welfare Administration.
After a little more than a year; petitioner was assigned elsewhere and respondent
Ganaden transferred to petitioner's first station in Baguio City. The Court ruled that
petitioner was not entitled to remain in her first station, In Jaro v. Hon. Valencia, et
al., 18petitioner Dr. Jaro had been appointed "Physician in the Municipal Maternity
and Charity Clinics, Bureau of Hospitals." He was first assigned to the Municipal
Maternity and Charity Clinics in Batulati, Davao, and later to the corresponding
clinic in Saug, Davao and then to Catil, Davao. He was later assigned to the
Municipality of Padada, also of Davao Province. He resisted his last assignment and
brought mandamus against the Secretary of Health to compel the latter to return
him to his station in Catil, Davao as Municipal Health Officer thereof. The Court,
applying Miclat v. Ganaden dismissed this Petition holding that his appointment not
being to any specific station but as a physician in the Municipal Maternity and
Charity Clinics, Bureau of Hospitals, he could be transferred or assigned to any
station where, in the opinion of the Secretary of Health, his services may be utilized
more effectively. 19
Also noteworthy is Sta. Maria v. Lopez 20 which involved the appointment of
petitioner Sta. Maria as "Dean, College of Education, University of the Philippines."
Dean Sta. Maria was transferred by the President of the University of the
Philippines to the Office of the President, U.P., without demotion in rank or salary,
thereby acceding to the demands of student activists who were boycotting their
classes in the U.P. College of Education. Dean Sta. Maria assailed his transfer as an
illegal and unconstitutional removal from office. In upholding Dean Sta. Maria's
claim, the Court, speaking through Mr. Justice Sanchez, laid down the applicable
doctrine in the following terms:
4. Concededly, transfers there are which do not amount to
removal. Some such transfer can be effected without the need for
 charges being preferred, without trial or hering, and even without SO ORDERED.
the consent of the employee.

The clue to such transfers may be found in the "nature of the

appointment." Where the appointment does not indicate a specific
station, an employee may be transferred or reassigned provided
the transfer affects no substantial change in title, rank and salary.
Thus one who is appointed "principal in the Bureau of Public
Schools" and is designated to head a pilot school may be
transferred to the post of principal of another school.

And the rule that outlaws unconsented transfers as anathema to

security of tenure applies only to an officer who is appointed —
not merely assigned — to a particular station. Such a rule does not
prescribe a transfer carried out under a specific statute that
empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the
agency. The use of approved techniques or methods in personnel
management to harness the abilities of employees to promote
optimum public service cannot-be objected to. . . .

5. The next point of inquiry is whether or not Administrative Order

77 would stand the test of validity vis-a-vis the principles just
enunciated.

xxx xxx xxx

To be stressed at this point, however, is that the appointment of

Sta. Maria is that of "Dean, College of Education, University of the
Philippines." He is not merely a dean "in the university." His
appointment is to a specific position; and, more importantly, to a
specific station. 21 (Citations omitted; emphases supplied)

For all the foregoing we conclude that the reassignment of petitioners Fernandez
and de Lima from their stations in the OPIA and OPR, respectively, to the Research
Development Office (RDO) and from the RDO to the Commissions Regional Offices
in Regions V and III, respectively, without their consent, did not constitute a
violation of their constitutional right to security of tenure.

WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with Prayer for
Writ of Preliminary Injunction or Temporary Restraining Order is hereby DISMISSED.
The Temporary Restraining Order issued by this Court on 27 September 1994 is G.R. No. 145368 April 12, 2002
hereby LIFTED. Costs against petitioners.
SALVADOR H. LAUREL, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent.
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223
"constituting a Committee for the preparation of the National Centennial
Celebration in 1998." The Committee was mandated "to take charge of the
nationwide preparations for the National Celebration of the Philippine Centennial of
the Declaration of Philippine Independence and the Inauguration of the Malolos
Congress."1
Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
"reconstituting the Committee for the preparation of the National Centennial
Celebrations in 1988." It renamed the Committee as the "National Centennial
Commission." Appointed to chair the reconstituted Commission was Vice-President
Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were
named Honorary Chairpersons.2
Characterized as an "i body," the existence of the Commission "shall terminate
upon the completion of all activities related to the Centennial Celebrations."3 Like
its predecessor Committee, the Commission was tasked to "take charge of the
nationwide preparations for the National Celebration of the Philippine Centennial of
the Declaration of Philippine Independence and the Inauguration of the Malolos
Congress."
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to "prepare, for approval of the President, a Comprehensive Plan for
the Centennial Celebrations within six (6) months from the effectivity of" the
Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and administrative
staff support by a Secretariat to be composed of, among others, detailed
personnel from the Presidential Management Staff, the National
Commission for Culture and the Arts, and the National Historical Institute.
Said Secretariat shall be headed by a full time Executive Director who shall
be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be drawn
from the Department of Tourism and the president’s Contingent Fund, in
an amount to be recommended by the Commission, and approved by the
President. Appropriations for succeeding years shall be incorporated in the
budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo ’98 Corporation
(Expocorp) was created.4Petitioner was among the nine (9) Expocorp incorporators,
who were also its first nine (9) directors. Petitioner was elected Expocorp Chief
Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in
the Senate denouncing alleged anomalies in the construction and operation of the
Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Coseteng’s privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35,
creating an ad hoc and independent citizens’ committee to investigate all the facts
and circumstances surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was appointed to chair
the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of
the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the
Committee’s recommendations was "the prosecution by the Ombudsman/DOJ of
Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice
to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation… of the anti-graft law."5
Later, on November 5, 1999, the Saguisag Committee issued its own report. It
recommended "the further investigation by the Ombudsman, and indictment, in
proper cases of," among others, NCC Chair Salvador H. Laurel for violations of
Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713,
and Article 217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office of the
Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report,
recommending:
 1. that a formal complaint be filed and preliminary investigation be
conducted before the Evaluation and Preliminary Investigation Bureau
(EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair
Salvador H. Laurel, former EXPOCORP President Teodoro Q. Peña and AK
President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No.
3019, as amended in relation to PD 1594 and COA Rules and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the
nominal complainant.6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation
and Preliminary Investigation Bureau, directed petitioner to submit his counter-
affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioner’s motion to
dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order
but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued
a resolution finding "probable cause to indict respondents SALVADOR H. LAUREL
and TEODORO Q. PEÑA before the Sandiganbayan for conspiring to violate Section
3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution
also directed that an information for violation of the said law be filed against Laurel
and Peña. Ombudsman Aniano A. Desierto approved the resolution with respect to
Laurel but dismissed the charge against Peña.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining
order, commanding respondents to desist from filing any information before the
Sandiganbayan or any court against petitioner for alleged violation of Section 3(e)
of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in
oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a
public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH
UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH
VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY
COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR
CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A
"PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES
ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs.
Sandiganbayan,9 where it was held that the jurisdiction of the Ombudsman was
limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade
27 and higher. As petitioner’s position was purportedly not classified as Grade 27 or
higher, the Sandiganbayan and, consequently, the Ombudsman, would have no
jurisdiction over him.
This last contention is easily dismissed. In the Court’s decision in Uy, we held that "it
is the prosecutor, not the Ombudsman, who has the authority to file the
corresponding information/s against petitioner in the regional trial court. The
Ombudsman exercises prosecutorial powers only in cases cognizable by the
Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of
the State and regular provincial and city prosecutors under the
Department of Justice to have control over prosecution of cases falling
within the jurisdiction of the regular courts. The investigation and
prosecutorial powers of the Ombudsman relate to cases rightfully falling
within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A.
 6770 ("An Act Providing for the Functional and Structural Organization of
the Office of the Ombudsman, and for other purposes") which vests upon
the Ombudsman "primary jurisdiction over cases cognizable by the
Sandiganbayan…" And this is further buttressed by Section 11 (4a) of R.A.
6770 which emphasizes that the Office of the Special Prosecutor shall have
the power to "conduct preliminary investigation and prosecute criminal
cases within the jurisdiction of the Sandiganbayan." Thus, repeated
references to the Sandiganbayan’s jurisdiction clearly serve to limit the
Ombudsman’s and Special Prosecutor’s authority to cases cognizable by
the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification
by the Ombudsman in the same case, the Court set aside the foregoing
pronouncement in its Resolution dated March 20, 2001. The Court explained the
rationale for this reversal:
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified. It pertains to any act or omission
of any public officer or employee when such act or omission appears to be
illegal, unjust, improper or inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan and those cognizable by
regular courts. It has been held that the clause "any illegal act or omission
of any public official" is broad enough to embrace any crime committed by
a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within
the jurisdiction of the Sandiganbayan, should not be construed as confining the
scope of the investigatory and prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman "to take over, at any stage, from any investigatory
agency of the government, the investigation of such cases." The grant of this
authority does not necessarily imply the exclusion from its jurisdiction of cases
involving public officers and employees by other courts. The exercise by the
Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan
is not incompatible with the discharge of his duty to investigate and prosecute
other offenses committed by public officers and employees. Indeed, it must be
stressed that the powers granted by the legislature to the Ombudsman are very
broad and encompass all kinds of malfeasance, misfeasance and non-feasance
committed by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be
equated with the limited authority of the Special Prosecutor under Section
11 of RA 6770. The Office of the Special Prosecutor is merely a component
of the Office of the Ombudsman and may only act under the supervision
and control and upon authority of the Ombudsman. Its power to conduct
preliminary investigation and to prosecute is limited to criminal cases
within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did
not intend to confine the investigatory and prosecutory power of the
Ombudsman to these types of cases. The Ombudsman is mandated by law
to act on all complaints against officers and employees of the government
and to enforce their administrative, civil and criminal liability in every case
where the evidence warrants. To carry out this duty, the law allows him to
utilize the personnel of his office and/or designate any fiscal, state
prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and prosecution of
certain cases. Those designated or deputized to assist him work under his
supervision and control. The law likewise allows him to direct the Special
Prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in
accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is
one of the most important functions of the Ombudsman. In passing RA
6770, the Congress deliberately endowed the Ombudsman with such
power to make him a more active and effective agent of the people in
ensuring accountability in public office. A review of the development of our
Ombudsman law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds upon
which petitioner relies. We first address the argument that petitioner, as Chair of
the NCC, was not a public officer.
The Constitution10 describes the Ombudsman and his Deputies as "protectors of the
people," who "shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision, agency
or instrumentality thereof, including government-owned or controlled
corporations." Among the awesome powers, functions, and duties vested by the
Constitution11 upon the Office of the Ombudsman is to "[i]nvestigate… any act or
omission of any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially reproduced in R.A. No.
6770, otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of
said law respectively provide:
SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors of
the people shall act promptly on complaints file in any form or manner
against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or
controlled corporations, and enforce their administrative, civil and criminal
liability in every case where the evidence warrants in order to promote
efficient service by the Government to the people.
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman
shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take
over, at any stage, from any investigatory agency of Government, the
investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
SEC 16. Applicability. – The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance and non-feasance that have been committed by
any officer or employee as mentioned in Section 13 hereof, during his
tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the government,
or of any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations.12
Neither the Constitution nor the Ombudsman Act of 1989, however, defines who
public officers are. A definition of public officers cited in jurisprudence 13 is that
provided by Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by
law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercised by him for
the benefit of the public. The individual so invested is a public officer. 14
The characteristics of a public office, according to Mechem, include the delegation
of sovereign functions, its creation by law and not by contract, an oath, salary,
continuance of the position, scope of duties, and the designation of the position as
an office.15
Petitioner submits that some of these characteristics are not present in the position
of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he
purportedly did not receive any compensation; and (3) continuance, the tenure of
the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign
functions of government as "[t]he most important characteristic" in determining
whether a position is a public office or not.
The most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office
involves a delegation to the individual of some of the sovereign functions
of government, to be exercised by him for the benefit of the public; – that
some portion of the sovereignty of the country, either legislative, executive
or judicial, attaches, for the time being, to be exercised for the public
benefit. Unless the powers conferred are of this nature, the individual is
not a public officer.16
Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions that can
be described as legislative or judicial. May the functions of the NCC then be
described as executive?
We hold that the NCC performs executive functions. The executive power "is
generally defined as the power to enforce and administer the laws. It is the power
of carrying the laws into practical operation and enforcing their due
observance."17 The executive function, therefore, concerns the implementation of
the policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts,
Culture, and Sports) thereof:
 Sec. 15. Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation’s historical and cultural
heritage and resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee
for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in
1998, and the centennial presents an important vehicle for fostering
nationhood and a strong sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and
thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured only
through long-range planning and continuous developmental programming;
Whereas, the active participation of the private sector in all areas of
special expertise and capability, particularly in communication and
information dissemination, is necessary for long-range planning and
continuous developmental programming;
Whereas, there is a need to create a body which shall initiate and
undertake the primary task of harnessing the multisectoral components
from the business, cultural, and business sectors to serve as effective
instruments from the launching and overseeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations
in 1998, cited the "need to strengthen the said Committee to ensure a more
coordinated and synchronized celebrations of the Philippine Centennial and wider
participation from the government and non-government or private organizations."
It also referred to the "need to rationalize the relevance of historical links with
other countries."
The NCC was precisely created to execute the foregoing policies and objectives, to
carry them into effect. Thus, the Commission was vested with the following
functions:
(a) To undertake the overall study, conceptualization, formulation
and implementation of programs and projects on the utilization of culture,
arts, literature and media as vehicles for history, economic endeavors, and
reinvigorating the spirit of national unity and sense of accomplishment in
every Filipino in the context of the Centennial Celebrations. In this regard, it
shall include a Philippine National Exposition ’98 within Metro Manila, the
original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness
and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of
all information about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the
implementation of the programs and projects;
(e) To prioritize the refurbishment of historical sites and structures
nationwide. In this regard, the Commission shall formulate schemes (e.g.
lease-maintained-and-transfer, build-operate-transfer, and similar
arrangements) to ensure the preservation and maintenance of the
historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation,
and to invite private individuals and organizations to assist it in the
performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs,
projects, activities as well as the status of the preparations for the
Celebration.18
It bears noting the President, upon whom the executive power is vested, 19 created
the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:
SEC. 2. Executive Orders. – Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive
orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the country’s economic
development, especially in Central Luzon. Petitioner himself admitted as much in
the oral arguments before this Court:
 MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos,
don’t you agree that the task of the centennial commission was
also to focus on the long term over all socio economic
development of the zone and Central Luzon by attracting
investors in the area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to touch
on by lack of material time I could not but that is a very important point. When I
was made Chairman I wanted the Expo to be in Batangas because I am a Batangeño
but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering
because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery
in that area by putting this Expo in Clark Field and so it was done I agreed and Your
Honor if I may also mention we wanted to generate employment aside from
attracting business investments and employment. And the Estrada administration
decided to junk this project there 48, 40 thousand people who lost job, they were
employed in Expo. And our target was to provide 75 thousand jobs. It would have
really calibrated, accelerated the development of Central Luzon. Now, I think they
are going back to that because they had the airport and there are plan to revive the
Expo site into key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy.20
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the holding by
a municipality of a town fiesta is a proprietary rather than a governmental function.
Petitioner argues that the "holding of a nationwide celebration which marked the
nation’s 100th birthday may be likened to a national fiesta which involved only the
exercise of the national government’s proprietary function."22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised
Administrative Code] simply gives authority to the municipality to
[celebrate] a yearly fiesta but it does not impose upon it a duty to observe
one. Holding a fiesta even if the purpose is to commemorate a religious or
historical event of the town is in essence an act for the special benefit of
the community and not for the general welfare of the public performed in
pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide
entertainment to the town inhabitants is not a conclusive test. For
instance, the maintenance of parks is not a source of income for the town,
nonetheless it is [a] private undertaking as distinguished from the
maintenance of public schools, jails, and the like which are for public
service.
As stated earlier, there can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. The
basic element, however beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is involved in the
celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that
the Court cautioned that "there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be considered and will be
decisive." Thus, in footnote 15 of Torio, the Court, citing an American case,
illustrated how the "surrounding circumstances plus the political, social, and
cultural backgrounds" could produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding circumstances
plus the political, social, and cultural backgrounds may have a decisive bearing on
this question. The case of Pope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused by defendants’
negligence. The defendants demurred to the complaint invoking the defense that
the city was engaged in the performance of a public governmental duty from which
it received no pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior Court of
New Haven Country. Plaintiff sought to amend his complaint to allege that the
celebration was for the corporate advantage of the city. This was denied. In
affirming the order, the Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance of
purely public governmental duties, unless made liable by statute….
A municipality corporation, which under permissive authority of its charter or of
statute, conducted a public Fourth of July celebration, including a display of
fireworks, and sent up a bomb intended to explode in the air, but which failed to
explode until it reached the ground, and then killed a spectator, was engaged in the
performance of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is made a public holiday,
called Independence Day, by our statutes. All or nearly all of the other states have
similar statutes. While there is no United States statute making a similar provision,
the different departments of the government recognize, and have recognized since
the government was established, July 4th as a national holiday. Throughout the
country it has been recognized and celebrated as such. These celebrations,
calculated to entertain and instruct the people generally and to arouse and
stimulate patriotic sentiments and love of country, frequently take the form of
literary exercises consisting of patriotic speeches and the reading of the
Constitution, accompanied by a musical program including patriotic air sometimes
preceded by the firing of cannon and followed by fireworks. That such celebrations
are of advantage to the general public and their promotion a proper subject of
legislation can hardly be questioned. x x x"
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the
liberation of our people from oppression by a foreign power. 1998 marked 100
years of independence and sovereignty as one united nation. The Celebrations was
an occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223
put it, it was a "vehicle for fostering nationhood and a strong sense of Filipino
identity," an opportunity to "showcase Filipino heritage and thereby strengthen
Filipino values." The significance of the Celebrations could not have been lost on
petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we
wanted to rekindle the love for freedom, love for country, that is the over-
all goal that has to make everybody feel proud that he is a Filipino, proud
of our history, proud of what our forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of
little consequence. A salary is a usual but not a necessary criterion for determining
the nature of the position. It is not conclusive. The salary is a mere incident and
forms no part of the office. Where a salary or fees is annexed, the office is provided
for it is a naked or honorary office, and is supposed to be accepted merely for the
public good.23 Hence, the office of petitioner as NCC Chair may be characterized as
an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to
which salary, compensation or fees are attached.24 But it is a public office,
nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-
hoc body" make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is
defined by rules prescribed by the government and not by contract, which an
individual is appointed by government to perform, who enters on the duties
pertaining to his station without any contract defining them, if those duties
continue though the person be changed, -- it seems very difficult to distinguish such
a charge or employment from an office of the person who performs the duties from
an officer."
At the same time, however, this element of continuance can not be
considered as indispensable, for, if the other elements are present "it can
make no difference," says Pearson, C.J., "whether there be but one act or a
series of acts to be done, -- whether the office expires as soon as the one
act is done, or is to be held for years or during good behavior."25
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.26 There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an "office of trust" as
to disqualify its holder as elector of the United States President and Vice-President.
(Under Article II of the United States Constitution, a person holding an office of
trust or profit under the United States is disqualified from being appointed an
elector.)
x x x. We think a Commissioner of the United States Centennial
Commission holds an office of trust under the United States, and that he is
therefore disqualified for the office of elector of President and Vice-
President of the United States.
The commission was created under a statute of the United States approved March
3, 1871. That statute provides for the holding of an exhibition of American and
foreign arts, products, and manufactures, "under the auspices of the government of
the United States," and for the constitution of a commission, to consist of more
than one delegate from each State and from each Territory of the United States,
"whose functions shall continue until close of the exhibition," and "whose duty it
shall be to prepare and superintend the execution of the plan for holding the
exhibition." Under the statute the commissioners are appointed by the President of
the United States, on the nomination of the governor of the States and Territories Expocorp is a private or a public corporation. Even assuming that Expocorp is a
respectively. Various duties were imposed upon the commission, and under the private corporation, petitioner’s position as Chief Executive Officer (CEO) of
statute provision was to be made for it to have exclusive control of the exhibit Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or
before the President should announce, by proclamation, the date and place of omissions as CEO of Expocorp must be viewed in the light of his powers and
opening and holding the exhibition. By an act of Congress approved June 1st, 1872, functions as NCC Chair.27
the duties and functions of the commission were further increased and defined.
That act created a corporation, called "The Centennial Board of Finance," to Finally, it is contended that since petitioner supposedly did not receive any
cooperate with the commission and to raise and disburse the funds. It was to be compensation for his services as NCC or Expocorp Chair, he is not a public officer as
organized under the direction of the commission. The seventh section of the act defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is,
provides "that the grounds for exhibition shall be prepared and the buildings therefore, beyond the jurisdiction of the Ombudsman.
erected by the corporation, in accordance with plans which shall have been
adopted by the United States Centennial Commission; and the rules and regulations Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,
of said corporation, governing rates for entrance and admission fees, or otherwise which reads:
affecting the rights, privileges, or interests of the exhibitors, or of the public, shall
be fixed and established by the United States Centennial Commission; and no grant
SEC. 3. Corrupt practices of public officers. – In addition to acts or
conferring rights or privileges of any description connected with said grounds or
omissions of public officers already penalized by existing law, the following
buildings, or relating to said exhibition or celebration, shall be made without the
shall constitute corrupt practices of any public officer and are hereby
consent of the United States Centennial Commission, and said commission shall
declared to be unlawful:
have power to control, change, or revoke all such grants, and shall appoint all
judges and examiners and award all premiums." The tenth section of the act
(e) Causing any undue injury to any party, including the Government, or
provides that "it shall be the duty of the United States Centennial Commission to
giving any private party any unwarranted benefits, advantage or
supervise the closing up of the affairs of said corporation, to audit its accounts, and
preference in the discharge of his official, administrative or judicial
submit in a report to the President of the United States the financial results of the
functions through manifest partiality, evident bad faith or gross
centennial exhibition."
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
It is apparent from this statement, which is but partial, that the duties and functions
of licenses or permits or other concessions.
of the commission were various, delicate, and important; that they could be
successfully performed only by men of large experience and knowledge of affairs;
A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as
and that they were not merely subordinate and provisional, but in the highest
follows:
degree authoritative, discretionary, and final in their character. We think that
persons performing such duties and exercising such functions, in pursuance of
statutory direction and authority, are not to be regarded as mere employees, SEC. 2. Definition of terms. – As used in this Act, the term –
agents, or committee men, but that they are, properly speaking, officers, and that
the places which they hold are offices. It appears, moreover, that they were xxx
originally regarded as officers by Congress; for the act under which they were
appointed declares, section 7, that "no compensation for services shall be paid to (b) "Public officer" includes elective and appointive officials and employees,
the commissioners or other officers, provided for in this act, from the treasury of permanent or temporary, whether in the classified or unclassified or exemption
the United States." The only other officers provided for were the "alternates" service receiving compensation, even nominal, from the government as defined in
appointed to serve as commissioners when the commissioners were unable to the preceding paragraph. [Emphasis supplied.]
attend.
It is clear from Section 2 (b), above, that the definition of a "public officer" is
Having arrived at the conclusion that the NCC performs executive functions and is, expressly limited to the application of R.A. No. 3019. Said definition does not apply
therefore, a public office, we need no longer delve at length on the issue of whether
for purposes of determining the Ombudsman’s jurisdiction, as defined by the Under particular circumstances, "compensation" has been held to include
Constitution and the Ombudsman Act of 1989. allowance for personal expenses, commissions, expenses, fees, an honorarium,
mileage or traveling expenses, payments for services, restitution or a balancing of
Moreover, the question of whether petitioner is a public officer under the Anti- accounts, salary, and wages.30
Graft and Corrupt Practices Act involves the appreciation of evidence and
interpretation of law, matters that are best resolved at trial. How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019,
to be interpreted?
To illustrate, the use of the term "includes" in Section 2 (b) indicates that the
definition is not restrictive.28 The Anti-Graft and Corrupt Practices Act is just one of Did petitioner receive any compensation at all as NCC Chair? Granting that
several laws that define "public officers." Article 203 of the Revised Penal Code, for petitioner did not receive any salary, the records do not reveal if he received any
example, provides that a public officer is: allowance, fee, honorarium, or some other form of compensation. Notably, under
the by-laws of Expocorp, the CEO is entitled to per diems and
x x x any person who, by direct provision of law, popular election or appointment by compensation.31 Would such fact bear any significance?
competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its Obviously, this proceeding is not the proper forum to settle these issues lest we
branches public duties as an employee, agent or subordinate official, of any rank or preempt the trial court from resolving them.
class.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the
Section 2 (14) of the Introductory Provisions of the Administrative Code of Court’s Resolution dated September 24, 2001 is hereby LIFTED.
1987,29 on the other hand, states:
SO ORDERED.
Officer – as distinguished from "clerk" or "employee", refers to a person
whose duties not being of a clerical or manual nature, involves the exercise
of discretion in the performance of the functions of the government. When
used with reference to a person having authority to do a particular act or
perform a particular person in the exercise of governmental power,
"officer" includes any government employee, agent or body having
authority to do the act or exercise that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees), one may be
considered a "public official" whether or not one receives compensation, thus:

"Public Officials" include elective and appointive officials and employees,

permanent or temporary, whether in the career or non-career service
including military and police personnel, whether or not they receive
compensation, regardless of amount.
G.R. No. 162059 January 22, 2008
Which of these definitions should apply, if at all?
HANNAH EUNICE D. SERANA, petitioner,
Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term vs.
"compensation," which is not defined by said law, has many meanings. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
 DECISION
REYES, R.T., J.:
CAN the Sandiganbayan try a government scholaran** accused, along with her
brother, of swindling government funds?
MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang
kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan?
The jurisdictional question is posed in this petition for certiorari assailing the
Resolutions1 of the Sandiganbayan, Fifth Division, denying petitioner’s motion to
quash the information and her motion for reconsideration.
The Antecedents
Petitioner Hannah Eunice D. Serana was a senior student of the University of the
Philippines-Cebu. A student of a state university is known as a government scholar.
She was appointed by then President Joseph Estrada on December 21, 1999 as a
student regent of UP, to serve a one-year term starting January 1, 2000 and ending
on December 31, 2000.
In the early part of 2000, petitioner discussed with President Estrada the renovation
of Vinzons Hall Annex in UP Diliman.2 On September 4, 2000, petitioner, with her
siblings and relatives, registered with the Securities and Exchange Commission the
Office of the Student Regent Foundation, Inc. (OSRFI). 3
One of the projects of the OSRFI was the renovation of the Vinzons Hall
Annex.4 President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI
as financial assistance for the proposed renovation. The source of the funds,
according to the information, was the Office of the President.
The renovation of Vinzons Hall Annex failed to materialize. 5 The succeeding student
regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of
the KASAMA sa U.P., a system-wide alliance of student councils within the state
university, consequently filed a complaint for Malversation of Public Funds and
Property with the Office of the Ombudsman.6
On July 3, 2003, the Ombudsman, after due investigation, found probable cause to
indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal
Case No. 27819 of the Sandiganbayan.7 The Information reads:
The undersigned Special Prosecution Officer III, Office of the Special
Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D.
SERANA of the crime of Estafa, defined and penalized under Paragraph
2(a), Article 315 of the Revised Penal Code, as amended committed as
follows:
That on October, 24, 2000, or sometime prior or subsequent thereto, in
Quezon City, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, HANNAH EUNICE D. SERANA, a
high-ranking public officer, being then the Student Regent of the University
of the Philippines, Diliman, Quezon City, while in the performance of her
official functions, committing the offense in relation to her office and
taking advantage of her position, with intent to gain, conspiring with her
brother, JADE IAN D. SERANA, a private individual, did then and there
wilfully, unlawfully and feloniously defraud the government by falsely and
fraudulently representing to former President Joseph Ejercito Estrada that
the renovation of the Vinzons Hall of the University of the Philippines will
be renovated and renamed as "President Joseph Ejercito Estrada Student
Hall," and for which purpose accused HANNAH EUNICE D. SERANA
requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00),
Philippine Currency, from the Office of the President, and the latter relying
and believing on said false pretenses and misrepresentation gave and
delivered to said accused Land Bank Check No. 91353 dated October 24,
2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00), which
check was subsequently encashed by accused Jade Ian D. Serana on
October 25, 2000 and misappropriated for their personal use and benefit,
and despite repeated demands made upon the accused for them to return
aforesaid amount, the said accused failed and refused to do so to the
damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW. (Underscoring supplied)
Petitioner moved to quash the information. She claimed that the Sandiganbayan
does not have any jurisdiction over the offense charged or over her person, in her
capacity as UP student regent.
Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249,
enumerates the crimes or offenses over which the Sandiganbayan has
jurisdiction.8 It has no jurisdiction over the crime of estafa.9 It only has jurisdiction
over crimes covered by Title VII, Chapter II, Section 2 (Crimes Committed by Public
Officers), Book II of the Revised Penal Code (RPC). Estafa falling under Title X,
Chapter VI (Crimes Against Property), Book II of the RPC is not within the
Sandiganbayan’s jurisdiction.
She also argued that it was President Estrada, not the government, that was duped.
Even assuming that she received the P15,000,000.00, that amount came from
Estrada, not from the coffers of the government. 10
Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her
person. As a student regent, she was not a public officer since she merely
represented her peers, in contrast to the other regents who held their positions in
an ex officio capacity. She addsed that she was a simple student and did not receive
any salary as a student regent.
She further contended that she had no power or authority to receive monies or
funds. Such power was vested with the Board of Regents (BOR) as a whole. Since it
was not alleged in the information that it was among her functions or duties to
receive funds, or that the crime was committed in connection with her official
functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case
of Soller v. Sandiganbayan.11
The Ombudsman opposed the motion.12 It disputed petitioner’s interpretation of
the law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains
the catch -all phrase "in relation to office," thus, the Sandiganbayan has jurisdiction
over the charges against petitioner. In the same breath, the prosecution countered
that the source of the money is a matter of defense. It should be threshed out
during a full-blown trial.13
According to the Ombudsman, petitioner, despite her protestations, iwas a public
officer. As a member of the BOR, she hads the general powers of administration and
exerciseds the corporate powers of UP. Based on Mechem’s definition of a public
office, petitioner’s stance that she was not compensated, hence, not a public
officer, is erroneous. Compensation is not an essential part of public office.
Parenthetically, compensation has been interpreted to include allowances. By this
definition, petitioner was compensated.14
Sandiganbayan Disposition
In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioner’s
motion for lack of merit.15 It ratiocinated:
The focal point in controversy is the jurisdiction of the Sandiganbayan over
this case.
It is extremely erroneous to hold that only criminal offenses covered by
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are within
the jurisdiction of this Court. As correctly pointed out by the prosecution,
Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has
jurisdiction over other offenses committed by public officials and
employees in relation to their office. From this provision, there is no single
doubt that this Court has jurisdiction over the offense of estafa committed
by a public official in relation to his office.
Accused-movant’s claim that being merely a member in representation of
the student body, she was never a public officer since she never received
any compensation nor does she fall under Salary Grade 27, is of no
moment, in view of the express provision of Section 4 of Republic Act No.
8249 which provides:
Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
(A) x x x
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade "27" and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
xxxx
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations. (Italics supplied)
It is very clear from the aforequoted provision that the Sandiganbayan has
original exclusive jurisdiction over all offenses involving the officials
enumerated in subsection (g), irrespective of their salary grades, because
the primordial consideration in the inclusion of these officials is the nature
of their responsibilities and functions.
Is accused-movant included in the contemplated provision of law?
A meticulous review of the existing Charter of the University of the
Philippines reveals that the Board of Regents, to which accused-movant
belongs, exclusively exercises the general powers of administration and
corporate powers in the university, such as: 1) To receive and appropriate
to the ends specified by law such sums as may be provided by law for the
support of the university; 2) To prescribe rules for its own government and
 to enact for the government of the university such general ordinances and
regulations, not contrary to law, as are consistent with the purposes of the
university; and 3) To appoint, on recommendation of the President of the
University, professors, instructors, lecturers and other employees of the
University; to fix their compensation, hours of service, and such other
duties and conditions as it may deem proper; to grant to them in its
discretion leave of absence under such regulations as it may promulgate,
any other provisions of law to the contrary notwithstanding, and to
remove them for cause after an investigation and hearing shall have been
had.
It is well-established in corporation law that the corporation can act only
through its board of directors, or board of trustees in the case of non-stock
corporations. The board of directors or trustees, therefore, is the
governing body of the corporation.
It is unmistakably evident that the Board of Regents of the University of
the Philippines is performing functions similar to those of the Board of
Trustees of a non-stock corporation. This draws to fore the conclusion that
being a member of such board, accused-movant undoubtedly falls within
the category of public officials upon whom this Court is vested with original
exclusive jurisdiction, regardless of the fact that she does not occupy a
position classified as Salary Grade 27 or higher under the Compensation
and Position Classification Act of 1989.
Finally, this court finds that accused-movant’s contention that the same
of P15 Million was received from former President Estrada and not from
the coffers of the government, is a matter a defense that should be
properly ventilated during the trial on the merits of this case. 16
On November 19, 2003, petitioner filed a motion for reconsideration.17 The motion
was denied with finality in a Resolution dated February 4, 2004.18
Issue
Petitioner is now before this Court, contending that "THE RESPONDENT COURT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION IN NOT QUASHING THE INFORMATION AND DISMISING THE CASE
NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE OFFENSE CHARGED
IN THE INFORMATION."19
In her discussion, she reiterates her four-fold argument below, namely: (a) the
Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer
with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not
committed in relation to her office; (d) the funds in question personally came from
President Estrada, not from the government.
Our Ruling
The petition cannot be granted.
Preliminarily, the denial of a motion to
quash is not correctible by certiorari.
We would ordinarily dismiss this petition for certiorari outright on procedural
grounds. Well-established is the rule that when a motion to quash in a criminal case
is denied, the remedy is not a petition for certiorari, but for petitioners to go to
trial, without prejudice to reiterating the special defenses invoked in their motion to
quash.20 Remedial measures as regards interlocutory orders, such as a motion to
quash, are frowned upon and often dismissed.21 The evident reason for this rule is
to avoid multiplicity of appeals in a single action. 22
In Newsweek, Inc. v. Intermediate Appellate Court,23 the Court clearly explained and
illustrated the rule and the exceptions, thus:
As a general rule, an order denying a motion to dismiss is merely
interlocutory and cannot be subject of appeal until final judgment or order
is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in
such a case is to file an answer, go to trial and if the decision is adverse,
reiterate the issue on appeal from the final judgment. The same rule
applies to an order denying a motion to quash, except that instead of filing
an answer a plea is entered and no appeal lies from a judgment of
acquittal.
This general rule is subject to certain exceptions. If the court, in denying
the motion to dismiss or motion to quash, acts without or in excess of
jurisdiction or with grave abuse of discretion, then certiorari or prohibition
lies. The reason is that it would be unfair to require the defendant or
accused to undergo the ordeal and expense of a trial if the court has no
jurisdiction over the subject matter or offense, or is not the court of proper
venue, or if the denial of the motion to dismiss or motion to quash is made
with grave abuse of discretion or a whimsical and capricious exercise of
judgment. In such cases, the ordinary remedy of appeal cannot be plain
and adequate. The following are a few examples of the exceptions to the
general rule.
 In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss
based on lack of jurisdiction over the subject matter, this Court granted the
petition for certiorari and prohibition against the City Court of Manila and
directed the respondent court to dismiss the case.
In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash
based on lack of jurisdiction over the offense, this Court granted the
petition for prohibition and enjoined the respondent court from further
proceeding in the case.
In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to
dismiss based on improper venue, this Court granted the petition for
prohibition and enjoined the respondent judge from taking cognizance of
the case except to dismiss the same.
In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss
based on bar by prior judgment, this Court granted the petition
for certiorari and directed the respondent judge to dismiss the case.
In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to
dismiss based on the Statute of Frauds, this Court granted the petition
for certiorari and dismissed the amended complaint.
In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition
for certiorari after the motion to quash based on double jeopardy was
denied by respondent judge and ordered him to desist from further action
in the criminal case except to dismiss the same.
In People v. Ramos (83 SCRA 11), the order denying the motion to quash
based on prescription was set aside on certiorari and the criminal case was
dismissed by this Court.24
We do not find the Sandiganbayan to have committed a grave abuse of discretion.
The jurisdiction of the Sandiganbayan is
set by P.D. No. 1606, as amended, not by
R.A. No. 3019, as amended.
We first address petitioner’s contention that the jurisdiction of the Sandiganbayan
is determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices
Act, as amended). We note that petitioner refers to Section 4 of the said law yet
quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the
Sandiganbayan.25She repeats the reference in the instant petition
for certiorari26 and in her memorandum of authorities. 27
We cannot bring ourselves to write this off as a mere clerical or typographical error.
It bears stressing that petitioner repeated this claim twice despite corrections made
by the Sandiganbayan.28
Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No.
3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief
legislative history of the statute creating the Sandiganbayan is in order. The
Sandiganbayan was created by P.D. No. 1486, promulgated by then President
Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest
norms of official conduct required of public officers and employees, based on the
concept that public officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency and shall remain at all times
accountable to the people.29
P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on
December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the
Sandiganbayan.30
P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further
altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995
made succeeding amendments to P.D. No. 1606, which was again amended on
February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the
jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has
jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more
of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the
time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade "27" and higher, of the
Compensation and Position Classification Act of 989 (Republic Act No.
6758), specifically including:
" (a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
city department heads;
" (b) City mayor, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads;
"(c ) Officials of the diplomatic service occupying the position of consul and
higher;
" (d) Philippine army and air force colonels, naval captains, and all officers
of higher rank;
" (e) Officers of the Philippine National Police while occupying the position
of provincial director and those holding the rank of senior superintended
or higher;
" (f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
" (g) Presidents, directors or trustees, or managers of government-owned
or controlled corporations, state universities or educational institutions or
foundations.
" (2) Members of Congress and officials thereof classified as Grade "27'"
and up under the Compensation and Position Classification Act of 1989;
" (3) Members of the judiciary without prejudice to the provisions of the
Constitution;
" (4) Chairmen and members of Constitutional Commission, without
prejudice to the provisions of the Constitution; and
" (5) All other national and local officials classified as Grade "27'" and
higher under the Compensation and Position Classification Act of 1989.
B. Other offenses of felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in
subsection a of this section in relation to their office.
C. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
" In cases where none of the accused are occupying positions
corresponding to Salary Grade "27'" or higher, as prescribed in the said
Republic Act No. 6758, or military and PNP officer mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper regional
court, metropolitan trial court, municipal trial court, and municipal circuit
trial court, as the case may be, pursuant to their respective jurisdictions as
provided in Batas Pambansa Blg. 129, as amended.
" The Sandiganbayan shall exercise exclusive appellate jurisdiction over
final judgments, resolutions or order of regional trial courts whether in the
exercise of their own original jurisdiction or of their appellate jurisdiction
as herein provided.
" The Sandiganbayan shall have exclusive original jurisdiction over petitions
for the issuance of the writs of mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and processes in aid of its
appellate jurisdiction and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which may be filed
under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided,
That the jurisdiction over these petitions shall not be exclusive of the
Supreme Court.
" The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may
thereafter promulgate, relative to appeals/petitions for review to the
Court of Appeals, shall apply to appeals and petitions for review filed with
the Sandiganbayan. In all cases elevated to the Sandiganbayan and from
the Sandiganbayan to the Supreme Court, the Office of the Ombudsman,
through its special prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986.
" In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those
employed in government-owned or controlled corporations, they shall be
tried jointly with said public officers and employees in the proper courts
which shall exercise exclusive jurisdiction over them.
" Any provisions of law or Rules of Court to the contrary notwithstanding,
the criminal action and the corresponding civil action for the recovery of
civil liability shall, at all times, be simultaneously instituted with, and jointly
determined in, the same proceeding by the Sandiganbayan or the
appropriate courts, the filing of the criminal action being deemed to
 necessarily carry with it the filing of the civil action, and no right to reserve
the filing such civil action separately from the criminal action shall be
recognized: Provided, however, That where the civil action had heretofore
been filed separately but judgment therein has not yet been rendered, and
the criminal case is hereafter filed with the Sandiganbayan or the
appropriate court, said civil action shall be transferred to the
Sandiganbayan or the appropriate court, as the case may be, for
consolidation and joint determination with the criminal action, otherwise
the separate civil action shall be deemed abandoned."
Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960.
The said law represses certain acts of public officers and private persons alike which
constitute graft or corrupt practices or which may lead thereto. 31 Pursuant to
Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be
filed with the Sandiganbayan.32
R.A. No. 3019 does not contain an enumeration of the cases over which the
Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited
by petitioner, deals not with the jurisdiction of the Sandiganbayan but with
prohibition on private individuals. We quote:
Section 4. Prohibition on private individuals. – (a) It shall be unlawful for
any person having family or close personal relation with any public official
to capitalize or exploit or take advantage of such family or close personal
relation by directly or indirectly requesting or receiving any present, gift or
material or pecuniary advantage from any other person having some
business, transaction, application, request or contract with the
government, in which such public official has to intervene. Family relation
shall include the spouse or relatives by consanguinity or affinity in the third
civil degree. The word "close personal relation" shall include close personal
friendship, social and fraternal connections, and professional employment
all giving rise to intimacy which assures free access to such public officer.
(b) It shall be unlawful for any person knowingly to induce or cause any
public official to commit any of the offenses defined in Section 3 hereof.
In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the
jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft
and corrupt practices and provides for their penalties.
Sandiganbayan has jurisdiction over
the offense of estafa.
Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among
those crimes cognizable by the Sandiganbayan. We note that in hoisting this
argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606,
without regard to the succeeding paragraphs of the said provision.
The rule is well-established in this jurisdiction that statutes should receive a sensible
construction so as to avoid an unjust or an absurd conclusion.33 Interpretatio talis in
ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is
ambiguity, such interpretation as will avoid inconvenience and absurdity is to be
adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat
maging mahirap at katawa-tawa.
Every section, provision or clause of the statute must be expounded by reference to
each other in order to arrive at the effect contemplated by the legislature.34 The
intention of the legislator must be ascertained from the whole text of the law and
every part of the act is to be taken into view. 35 In other words, petitioner’s
interpretation lies in direct opposition to the rule that a statute must be interpreted
as a whole under the principle that the best interpreter of a statute is the statute
itself.36 Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay
marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang
pinakamainam na interpretasyon ay ang mismong batas.
Section 4(B) of P.D. No. 1606 reads:
B. Other offenses or felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in
subsection a of this section in relation to their office.
Evidently, the Sandiganbayan has jurisdiction over other felonies committed by
public officials in relation to their office. We see no plausible or sensible reason to
exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606.
Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the
twin requirements that (a) the offense is committed by public officials and
employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b)
the offense is committed in relation to their office.
In Perlas, Jr. v. People,37 the Court had occasion to explain that the Sandiganbayan
has jurisdiction over an indictment for estafa versus a director of the National Parks
Development Committee, a government instrumentality. The Court held then:
The National Parks Development Committee was created originally as an
Executive Committee on January 14, 1963, for the development of the
Quezon Memorial, Luneta and other national parks (Executive Order No.
 30). It was later designated as the National Parks Development Committee
(NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda
R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-
Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the
Bureau of Forest Development, Department of Natural Resources, on
December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD
No. 830, dated November 27, 1975), the NPDC has remained under the
Office of the President (E.O. No. 709, dated July 27, 1981).
Since 1977 to 1981, the annual appropriations decrees listed NPDC as a
regular government agency under the Office of the President and
allotments for its maintenance and operating expenses were issued direct
to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3).
The Sandiganbayan’s jurisdiction over estafa was reiterated with greater firmness
in Bondoc v. Sandiganbayan.38Pertinent parts of the Court’s ruling in Bondoc read:
Furthermore, it is not legally possible to transfer Bondoc’s cases to the
Regional Trial Court, for the simple reason that the latter would not have
jurisdiction over the offenses. As already above intimated, the inability of
the Sandiganbayan to hold a joint trial of Bondoc’s cases and those of the
government employees separately charged for the same crimes, has not
altered the nature of the offenses charged, as estafa thru falsification
punishable by penalties higher than prision correccional or imprisonment
of six years, or a fine of P6,000.00, committed by government employees
in conspiracy with private persons, including Bondoc. These crimes are
within the exclusive, original jurisdiction of the Sandiganbayan. They
simply cannot be taken cognizance of by the regular courts, apart from the
fact that even if the cases could be so transferred, a joint trial would
nonetheless not be possible.
Petitioner UP student regent
is a public officer.
Petitioner also contends that she is not a public officer. She does not receive any
salary or remuneration as a UP student regent. This is not the first or likely the last
time that We will be called upon to define a public officer. In Khan, Jr. v. Office of
the Ombudsman, We ruled that it is difficult to pin down the definition of a public
officer.39 The 1987 Constitution does not define who are public officers. Rather, the
varied definitions and concepts are found in different statutes and jurisprudence.
In Aparri v. Court of Appeals,40 the Court held that:
A public office is the right, authority, and duty created and conferred by
law, by which for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercise by him for the
benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The
right to hold a public office under our political system is therefore not a
natural right. It exists, when it exists at all only because and by virtue of
some law expressly or impliedly creating and conferring it (Mechem Ibid.,
Sec. 64). There is no such thing as a vested interest or an estate in an
office, or even an absolute right to hold office. Excepting constitutional
offices which provide for special immunity as regards salary and tenure, no
one can be said to have any vested right in an office or its salary (42 Am.
Jur. 881).
In Laurel v. Desierto,41 the Court adopted the definition of Mechem of a public
office:
"A public office is the right, authority and duty, created and conferred by
law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercised by him for
the benefit of the public. The individual so invested is a public officer." 42
Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact,
a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the
salary grade that determines the jurisdiction of the Sandiganbayan. The
Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No.
1606. In Geduspan v. People,43 We held that while the first part of Section 4(A)
covers only officials with Salary Grade 27 and higher, its second part specifically
includes other executive officials whose positions may not be of Salary Grade 27
and higher but who are by express provision of law placed under the jurisdiction of
the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is
placed there by express provision of law.44
Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with
jurisdiction over Presidents, directors or trustees, or managers of government-
owned or controlled corporations, state universities or educational institutions or
foundations. Petitioner falls under this category. As the Sandiganbayan pointed out,
the BOR performs functions similar to those of a board of trustees of a non-stock
corporation.45 By express mandate of law, petitioner is, indeed, a public officer as
contemplated by P.D. No. 1606.
Moreover, it is well established that compensation is not an essential element of
public office.46 At most, it is merely incidental to the public office.47
Delegation of sovereign functions is essential in the public office. An investment in
an individual of some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public makes one a public officer. 48
The administration of the UP is a sovereign function in line with Article XIV of the
Constitution. UP performs a legitimate governmental function by providing
advanced instruction in literature, philosophy, the sciences, and arts, and giving
professional and technical training.49 Moreover, UP is maintained by the
Government and it declares no dividends and is not a corporation created for
profit.50
The offense charged was committed
in relation to public office, according
to the Information.
Petitioner likewise argues that even assuming that she is a public officer, the
Sandiganbayan would still not have jurisdiction over the offense because it was not
committed in relation to her office.
According to petitioner, she had no power or authority to act without the approval
of the BOR. She adds there was no Board Resolution issued by the BOR authorizing
her to contract with then President Estrada; and that her acts were not ratified by
the governing body of the state university. Resultantly, her act was done in a private
capacity and not in relation to public office.
It is axiomatic that jurisdiction is determined by the averments in the
information.51 More than that, jurisdiction is not affected by the pleas or the
theories set up by defendant or respondent in an answer, a motion to dismiss, or a
motion to quash.52 Otherwise, jurisdiction would become dependent almost
entirely upon the whims of defendant or respondent. 53
In the case at bench, the information alleged, in no uncertain terms that petitioner,
being then a student regent of U.P., "while in the performance of her official
functions, committing the offense in relation to her office and taking advantage of
her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA,
a private individual, did then and there wilfully, unlawfully and feloniously defraud
the government x x x." (Underscoring supplied)
Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan
when it did not quash the information based on this ground.
Source of funds is a defense that should
be raised during trial on the merits.
It is contended anew that the amount came from President Estrada’s private funds
and not from the government coffers. Petitioner insists the charge has no leg to
stand on.
We cannot agree. The information alleges that the funds came from the Office of
the President and not its then occupant, President Joseph Ejercito Estrada. Under
the information, it is averred that "petitioner requested the amount of Fifteen
Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the
President, and the latter relying and believing on said false pretenses and
misrepresentation gave and delivered to said accused Land Bank Check No. 91353
dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00)."
Again, the Court sustains the Sandiganbayan observation that the source of
the P15,000,000 is a matter of defense that should be ventilated during the trial on
the merits of the instant case.54
A lawyer owes candor, fairness
and honesty to the Court.
As a parting note, petitioner’s counsel, Renato G. dela Cruz, misrepresented his
reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No.
3019. A review of his motion to quash, the instant petition for certiorari and his
memorandum, unveils the misquotation. We urge petitioner’s counsel to observe
Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the
Rules stating that "a lawyer shall not misquote or misrepresent."
The Court stressed the importance of this rule in Pangan v. Ramos,55 where Atty
Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal
case. The Court ruled that Atty. Ramos resorted to deception by using a name
different from that with which he was authorized. We severely reprimanded Atty.
Ramos and warned that a repetition may warrant suspension or disbarment.56
We admonish petitioner’s counsel to be more careful and accurate in his citation. A
lawyer’s conduct before the court should be characterized by candor and
fairness.57 The administration of justice would gravely suffer if lawyers do not act
with complete candor and honesty before the courts.58
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.

G.R. No. L-31683 January 31, 1983

ERNESTO M. DE GUZMAN, petitioner,

vs.
HON. ABELARDO SUBIDO, as Civil Service Commissioner, HON. NORBERTO
AMORANTO, as Mayor of Quezon City, ET AL., respondents.

GUTIERREZ, JR., J.:

All persons appointed to positions covered by the civil service law are required by
regulation to accomplish an information sheet on the prescribed form. The
information sheet provides in summary outline the personal date, eligibilities,
education, experiences, and other qualifications of the appointee. Included in the
information sheet is a query on any criminal records of the applicant, which in later
versions of the prescribed form asks if he has ever been arrested, indicted, or
convicted of any crime or accused in any administrative proceeding.
The issue in this petition for review is whether or not a person otherwise qualified
but who admits having violated a city ordinance on jaywalking and another
ordinance requiring a cochero to occupy only the seat intended for a cochero in a
calesa is disqualified for appointment to the Quezon City Police Force.
Petitioner Ernesto M. de Guzman was appointed patrolman in the Quezon City
Police Department by Mayor Norberto S. Amoranto on August 16, 1965. He was a
civil service eligible having taken and passed the civil service patrolman's
examination given on November 24, 1962. He had also passed the usual character
investigation conducted before appointment. As a newly appointed patrolman, the
petitioner went through and successfully completed the police training course.
On March 21, 1966, the petitioner's appointment was forwarded to the
Commissioner of Civil Service. On August 18, 1966, or a year after the appointment
and with no action on the appointment papers being taken by the respondent
commissioner, the respondents city treasurer and city auditor stopped the payment
of the petitioner's salaries.
On May 12, 1967, the respondent commissioner returned the Petitioner's
appointment papers, without action thereon, to the respondent mayor on the
ground that Mr. de Guzman was disqualified for appointment under Republic Act
No. 4864, the Police Act of 1966, which provides:
(d) SEC. 9. General Qualifications of Appointment. —No person shall be appointed
to a local police agency unless he possesses the following qualifications:
(5) He must have no criminal record.'(SEC. 9 (5), Police Act of 1966)
The above finding was based solely on the petitioner's own answer to question No.
15 in the information sheet:
15. Have you been accused, indicted, or tried for the violation of any law,
ordinance, or regulation, before any court or tribunal?
The answer given by the petitioner was:
Yes. Jaywalking-paid fine P5.50; Municipal O.d. (Mla.) Sect. 1187 (cochero) paid fine
of P5.00.
On September 7, 1967, the petitioner filed a petition for certiorari and mandamus
with preliminary mandatory injunction with the Court of First Instance of Rizal,
Branch V at Quezon city.
On May 29, 1969, the lower court rendered a decision dismissing the petition.
According to the court, the requirement of "no criminal record" means without any
criminal record and makes no distinction whether an act violates a state law or only
a municipal or city ordinance.
The issue posed in this petition is presented by Mr. de Guzman, thus:
Whether or not violations and/or convictions of municipal ordinances, one, for
'Jaywalking' and the other, Manila Municipal Ordinance No. 1187, prohibiting the
cochero from 'occupying any part of the vehicle except the seat reserved for him',
constitute 'CRIMINAL RECORD' to disqualify the petitioner under the Police Act of
1966 (Rep. Act No. 4864) from appointment to the Quezon City Police Force.
We are constrained to grant the petition.
The former Civil Service Act, Republic Act No. 2260, as amended, stated in its
Section 23 that opportunity for government employment shag be open to all
qualified citizens and positive efforts shall be exerted to attract the best qualified to
enter the service. The same policy is reiterated in the Civil Service Decree,
Presidential Decree No. 807, at Section 19, which superseded Republic Act No.
2260.
The requirements for applicants to a policeman's position may be quite stringent
but the basic policy of attracting the best qualified is not served by automatically
excluding any person who in an absent minded mood or while hurrying to an urgent
appointment may unwittingly have crossed a street or stepped down from the curb
in violation of a jaywalking ordinance. The same thing is true of a person who may
have worked his way through college as a cochero and, who, pitying his horse
struggling up an incline or a bridge, leaves his seat to stand after and forward to
balance the calesa load or who, alone on his way home, sits in the seat intended for
passengers only to be fined for violating an obscure municipal ordinance.
The petitioner cites decisions of American courts in support of his arguments:
By weight of authority, the violation of a municipal ordinance, enacted by a city
under legislative authority, as in the case of ordinances prohibiting and punishing
gaming and the keeping of gaming houses, etc., is not a crime, in the proper sense
of the term, for such ordinances are not public laws, and the punishment for their
violation is imposed by the state.'(Withers v. State, 36 Ala. 252; City of Greely v.
Hamman, 12 Cole., 94, 20 Pac. 1; Williams v. Augusta, 4 Ga. 509) as cited on p. 7,
Francisco's Revised Penal Code, Book One, 3rd Edition.
The common-law definition of a 'crime' as given by Blackstone, is 'an act committed
or omitted in violation of a public law,' ... giving the accused the right to be heard in
all 'criminal prosecutions' relates exclusively to prosecution for violation of public
laws of the state, and a city ordinance is not a public law of the state, but a local law
of the particular corporation, made for its internal practice and good government.
(Castillo [should be Costelo] v. Feagin, 50 South 134, 135, 162 Ala. 191)
There are other federal decisions which state that prosecutions to enforce penalties
for violations of municipal ordinances are not criminal prosecutions and the
offenses against these ordinances are not criminal cases. (City of Mobile v.
McCown, Oil Co., 148 So. 402, 405; City of Mankato v. Arnold, 30 N.W. 305, 306;
Village of Litchville v. Hanson, 124 N.W. 1119, 1120).
We do not go so far as to sustain the arguments that only violations of statutes
enacted by the national legislature can give rise to "crimes" or "a criminal record" as
these terms are used in our law on local governments or the law of public officers.
However, we take cognizance of the distinction in the law of municipal corporations
which distinguishes between acts not essentially criminal relating to municipal
regulations for the promotion of peace, good order, health, safety, and comfort of
residents and acts in, intrinsically punishable as public offenses. (See cases cited in
Dillon, A Treatise On The Law of Municipal Corporations, Vol. II, 5th Edition,
Sections 745, 746, and 749.) A penalty imposed for the breach of a municipal
regulation is not necessarily an exercise of the sovereign authority, to define crimes
and provide for their punishment, delegated to a local government. In many cases,
the penalty is merely intended not to render the ordinance inoperative or useless.
The phrase "criminal record" governing qualifications for appointments could not
have been intended by the legislature to automatically cover every violation of a
municipal or city ordinance carrying a sanction of a nominal fine to enforce it. A
violation of a municipal ordinance to qualify as a "crime" must involve at least a
certain degree of evil doing, immoral conduct, corruption, malice, or want of
principles reasonably related to the requirements of the public office.
Automatic and perpetual disqualification of a person who in one unguarded
moment threw a cigarette butt on the street, spat in public, deposited house
garbage in a market receptacle for garbage, exceeded the speed limit for vehicles.
blew his car horn near a school or hospital, or, as in this case, jaywalked, and who
has paid the fine imposed by ordinance as commensurate deterrence for the act,
would be unreasonable, if not oppressive.
Respondent Subido should have gone deeper into the nature of the petitioner's acts
instead of taking every "Yes" answer in Question 15 of the information sheet as an
automatic disqualification. Under Rule VI of the Civil Service Rules and Regulations,
the respondent commissioner had 180 days from receipt of the appointment papers
to act on them. Inaction means the appointment is approved as properly made. The
papers were returned more than a year by the commissioner after he received
them.1äwphï1.ñët The appointment, not having any defect of record except the
matter in issue in this case, must be deemed complete and properly made after the
180 days period. The termination of the petitioner's services was, therefore, an
illegal and invalid removal. The petitioner should be reinstated, assuming he meets
the physical and other requirements of the Integrated National Police under the
new legislation and procedures governing police forces. In addition to being paid
any salaries for services actually rendered but not paid, the petitioner, following the
formula in cases of illegal dismissals is entitled to five years backpay (Cristobal v.
Melchor, 78 SCRA 175,187).
WHEREFORE, the decision of the court a quo is set aside. The Integrated National
Police and the respondent officials are directed to reinstate the petitioner to the
Quezon City Police Force provided he meets the age, physical, and other
qualifications and eligibilities for patrolman under present legislation and rules. The
city government of Quezon City and the incumbent Mayor, Treasurer, and Auditor
of the city are ordered to pay the petitioner any unpaid services and allowances for
services actually rendered and five years backpay from the date his services were
actually terminates.
SO ORDERED.
G.R. No. L-107330 December 17, 1993
EDGAR N. RAPISORA, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
PADILLA, J.:
This petition for certiorari with mandamus seeks to set aside Resolution No. 92-
1214 dated 3 September 1992 1 of the respondent Civil Service Commission denying
petitioner's motion for reconsideration of the Commission's Resolution No. 92-699
dated 26 May 1992 2 which disapproved the permanent appointment of petitioner
as Provincial Health Officer I, Integrated Provincial Health Office, Benguet Province.
The dispositive part of Resolution No. 92-699 reads as follows:
WHEREFORE, premises considered, the Commission resolves that: the appointment
of Dr. Edgar N. Rapisora as Provincial Health Officer I, Integrated Provincial Health
Office, Benguet be disapproved; and, the action of Director E. Tadle-Herrera of CSC-
DOH be set aside.3
Petitioner was the Chief of Hospital of the Kalamansig District Hospital in the
Province of Sultan Kudarat, Mindanao, when he learned that the position of
Provincial Health Officer I of Benguet would become vacant. He forthwith applied
for the said position. A committee was created by the Department of Health to
screen applicants for the vacant positions in the Department including the position
applied for by petitioner.
On 5 November 1991, then Secretary of Health, Honorable Alfredo R.A. Bengzon
designated herein petitioner as officer-in-charge of the Office of the Provincial
Health Officer I, Integrated Provincial Health Office of Benguet. 4Thereafter, he was
extended a permanent appointment, by transfer with promotion, on 24 December
1991. 5Petitioner actually assumed the duties of the position on 2 January 1992.
When petitioner assumed office as Provincial Health Officer I on 2 January 1992, the
new Local Government Code had taken effect on 1 January 1992, for which reason
respondent, through Director E. Tadle-Herrera, CSC-DOH, returned to the Secretary
of Health petitioner's appointment calling the Secretary's attention to Section 463,
Chapter 2, Title IV of the Local Government Code of 1992. 6 Hence, the secretary of
Health, Honorable Antonio O. Periquet who had succeeded Secretary Alfredo R.A.
Bengzon, wrote Benguet Governor Andres R. Bugnosen seeking his concurrence in
the appointment of petitioner and informing the Governor that the Department of
health after a formal screening and evaluation by its executive committee believed
that petitioner was the most appropriate person to assume the position in question.
Governor Bugnosen concurred with petitioner's appointment. 7
On 3 April 1992, petitioner's appointment was approved by the Field Officer of the
respondent, Director E. Tadle-Herrera as TEMPORARY, "(P)ending promulgation of
the guidelines on who will be the appointing authority pursuant to the Local
Government Code of 1991."8
Petitioner appealed to respondent Commission, seeking reconsideration of his
appointment from temporary to permanent which was the appointment extended
to him by the Secretary of Health. Respondent instead set aside the action of
Director E. Tadle-Herrera and entirely disapproved petitioner's appointment on the
ground that he did not possess a Certificate/Master in Public Health/Hospital
Administration which is the educational requirement for the position at the time of
appointment, in accordance with DOH qualification standards. Moreover, according
to respondent, the Local Government Code of 1992 already took effect when
petitioner assumed office on 2 January 1992, so that in accordance therewith, the
Provincial Health Officer I should be appointed by the local chief executive
concerned with the concurrence of a majority of all the members of the
Sanggunian, subject to Civil Service Law.
The issues raised in the present petition 9 may be simplified to whether or not
respondent Civil Service Commission committed grave abuse of discretion in
disapproving petitioner's permanent appointment as Provincial Health Officer I of
Benguet Province.
We find the petition meritorious.
Petitioner was extended a permanent appointment even before the Local
Government Code took effect, after he went through a rigid interview by the
Executive Committee created by the Department of Health to screen applicants for
available positions in the Department. Under DOH qualification standards for the
position of Provincial Health Officer I, the appointee must meet the following
requirements.
Education: Doctor of Medicine with a certificate/Master in Public Health/Hospital
Administration
Experience: 5 years experience in planning, organizing, directing, coordinating and
supervising various public health and medical activities.
Eligibility: RA 1080
(Physician) 10
True enough, petitioner did not possess a Certificate/Master in Public
Health/Hospital Administration at the time of his appointment. Apparently, then
Health Secretary Bengzon decided that petitioner's other qualifications, such as, his
training and experience in hospital administration offset or made up for his
deficiency in educational requirement. Prior to his appointment to the position in
question, petitioner held the position of Chief of Hospital, Kalamansig District
Hospital, Kalamansig, Sultan Kudarat. In addition, while in foreign employment from
1976 to 1985, he served as officer-in-charge of two (2) general hospitals in Nigeria
and attended seminars, symposia, workshops, clinical conferences, and trained
newly-graduated Nigerian physicians in general surgery. These training and
experience must have been taken into account by Health Secretary Bengzon when
he extended a permanent appointment to petitioner, which appointment his
successors, Honorable Antonio O. Periquet and the incumbent Honorable Juan M.
Flavier, also recommended for approval by the Civil Service Commission.
Respondent finds untenable petitioner's contention that his deficiency in
educational requirement (Master in Public Health/Hospital Administration) can be
offset by his training and experience. It maintains that petitioner should at least
have earned for himself some units or started pursuing such particular educational
requirements as allegedly required by the rule on substitution.
We do not agree. This rule cannot be strictly interpreted as to curtail an agency's
discretionary power to appoint as long as the appointee possesses other
qualifications required by law.
Recently, this Court held:
It would be appropriate to state at the outset that when necessary, education,
experience or training may be used interchangeably to offset deficiencies (in fact,
the CSC issued Memorandum Circular No. 23 series of 1991 expressly allowing the
offsetting of deficiencies except the required eligibility). The necessity exists if the
appointee's training or experience is of such a level that the same would more than
supplement the deficiency in education considering the demands of the position in
question. The converse holds true if the appointee's deficiency is in the required
training or experience. The decision as to when the conditions give rise to a
necessity to interchange education with experience and vice-versa rests upon the
sound discretion of the appointing authority. This is not to be viewed as an
unbridled license given to the appointing authority to appoint whomsoever he
desires. This is rather a recognition of the fact that the appointing authority is in the
best position to determine the needs of his department or agency and how to
satisfy those needs. Moreover, it is precisely the province of the QS to provide the
gauge by which the appointing authority shall exercise his discretion. The QS has
been defined in Section 20, PD 807 as expressing the minimum requirements for a
class of position in terms of education, training and experience, civil service
eligibility, physical fitness and other qualities required for successful performance. It
is, thus, the QS which provides for the considerations upon which the appointing
authority decides when the levels of education or experience may be sufficient to
offset each other. 11
As repeatedly ruled by the Court, the Civil Service Commission is not empowered to
determine or change the kind of nature of the appointment, for it is an essential
discretionary power and must be performed by the officer on whom its is vested
according to his best lights, the only condition being that the appointee should
possess the minimum qualification required by law. In the case at bench, then
Secretary of Health, Honorable Alfredo R.A. Bengzon, and his successors, Honorable
Antonio O. Periquet and Ho. Juan M. Flavier, believe that petitioner possesses the
necessary qualifications required by law for the position.
It is worthy to note that respondent Commission had approved the appointment of
a former Public Health Officer I in Benguet, Dr. Emilio B. Cadayona, who at the time
of his appointment in 1988 did not also possess a Certificate/-Master's degree in
Public Health/Hospital Administration but, like petitioner, was a holder of the
Degree of Doctor of Medicine. The Court suggests that respondent look more
closely into its own resolutions and be consistent in resolving the qualifications of
appointees.
WHEREFORE, the petition is GRANTED. The Court sets aside Resolution No. 92-699,
dated 26 May 1992, and Resolution No. 92-1214, dated 3 September 1992 of
respondent Civil Service Commission, and orders the respondent Commission to
approve petitioner's permanent appointment as Provincial Health Officer I,
Integrated Provincial Health Office, Benguet Province.
SO ORDERED.
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, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, respondents.
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 or privilege to any government official or employee, including those in government-
by way of salaries and other operational expenses attached to the office . . . owned or controlled corporations . . . .
."2 Paragraph (d) reads —
for the reason that the appointment of respondent Gordon to the subject posts
(d) Chairman administrator — The President shall appoint a professional manager made by respondent Executive Secretary on 3 April 1992 was within the prohibited
as administrator of the Subic Authority with a compensation to be determined by 45-day period prior to the 11 May 1992 Elections.
the Board subject to the approval of the Secretary of Budget, who shall be the ex
oficio chairman of the Board and who shall serve as the chief executive officer of The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which
the Subic Authority: Provided, however, That for the first year of its operations from states, "Provided, however, That for the first year of its operations from the
the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the
the chairman and chief executive officer of the Subic Authority (emphasis supplied). chairman and chief executive officer of the Subic Authority," violates the
constitutional proscription against appointment or designation of elective officials
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, to other government posts.
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 In full, Sec. 7 of Art. IX-B of the Constitution provides:
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 No elective official shall be eligible for appointment or designation in any capacity
that "[n]o elective official shall be eligible for appointment or designation in any to any public office or position during his tenure.
capacity to any public officer 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)
Unless otherwise allowed by law or by the primary functions of his position, no
Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . .
appointive official shall hold any other office or employment in the Government or
appoint all other officers of the Government whose appointments are not
any subdivision, agency or instrumentality thereof, including government-owned or
otherwise provided for by law, and those whom he may be authorized by law to
controlled corporations or their subsidiaries.
appoint",4since 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),
The section expresses the policy against the concentration of several public
of the Omnibus Election Code, which says:
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
Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . .
affirmation that a public office is a full-time job. Hence, a public officer or
(g) Appointment of new employees, creation of new position, promotion, or giving
employee, like the head of an executive department described in Civil Liberties
salary increases. — During the period of forty-five days before a regular election
Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the
and thirty days before a special election, (1) any head, official or appointing officer
Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No.
of a government office, agency or instrumentality, whether national or local,
83815,6 ". . . . should be allowed to attend to his duties and responsibilities without
including government-owned or controlled corporations, who appoints or hires any
the distraction of other governmental duties or employment. He should be
new employee, whether provisional, temporary or casual, or creates and fills any
precluded from dissipating his efforts, attention and energy among too many
new position, except upon prior authority of the Commission. The Commission shall
positions of responsibility, which may result in haphazardness and inefficiency . . . ."
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
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to
position shall not be filled in a manner that may influence the election. As an
prevent a situation where a local elective official will work for his appointment in an
exception to the foregoing provisions, a new employee may be appointed in case of
executive position in government, and thus neglect his constituents . . . ."7
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 In the case before us, the subject proviso directs the President to appoint an
government official who promotes, or gives any increase of salary or remuneration 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 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
the government post, 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 then 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," 21and 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 . . . .
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 appointment, by or pursuant to a public unconstitutional law, before the same is
for appointment to another public office. 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
Where, as in the case of respondent Gordon, an incumbent elective official was,
notwithstanding his ineligibility, appointed to other government posts, he does not Conformably with our ruling in Civil Liberties Union, any and all per diems,
automatically forfeit his elective office nor remove his ineligibility imposed by the allowances and other emoluments which may have been received by respondent
Constitution. On the contrary, since an incumbent elective official is not eligible to Gordon pursuant to his appointment may be retained by him.
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 The illegality of his appointment to the SBMA posts being now evident, other
confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member matters affecting the legality of the questioned proviso as well as the appointment
of the House of Representatives may hold any other office or employment in the of said respondent made pursuant thereto need no longer be discussed.
Government . . . during his term without forfeiting his seat . . . ." The difference
between the two provisions is significant in the sense that incumbent national In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel
legislators lose their elective posts only after they have been appointed to another which he expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227,
government office, while other incumbent elective officials must first resign their when he articulated —
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
. . . . (much) as we would like to have the present Mayor of
ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite
Olongapo City as the Chief Executive of this Authority that we are
different where it is expressly provided by law that a person holding one office shall
creating; (much) as I, myself, would like to because I know the
be ineligible to another. Such a provision is held to incapacitate the incumbent of an
capacity, integrity, industry and dedication of Mayor Gordon;
office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan,
(much) as we would like to give him this terrific, burdensome and
283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to
heavy responsibility, we cannot do it because of the constitutional
render his election or appointment to the latter office void (State ex rel. Childs v
prohibition which is very clear. It says: "No elective official shall be
Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v
appointed or designated to another position in any capacity." 29
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
For, indeed, "a Constitution must be firm and immovable, like a mountain amidst
appointment to another office, either generally or of a certain kind, the prohibition
the strife of storms or a rock in the ocean amidst the raging of the waves." 30 One of
has been held to incapacitate the incumbent of the first office to hold the second so
the characteristics of the Constitution is permanence, i.e., "its capacity to resist
that any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v.
capricious or whimsical change dictated not by legitimate needs but only by passing
Hogan, 218 So 2d 258, 283 Ala 445)." 27
fancies, temporary passions or occasional infatuations of the people with ideas or
personalities . . . . Such a Constitution is not likely to be easily tampered with to suit
As incumbent elective official, respondent Gordon is ineligible for appointment to
political expediency, personal ambitions or ill-advised agitation for change." 31
the position of Chairman of the Board and Chief Executive of SBMA; hence, his
appointment thereto pursuant to a legislative act that contravenes the Constitution
Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
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 WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". .
principles of policy and justice, will hold valid so far as they involve the interest of . Provided, however, That for the first year of its operations from the effectivity of
the public and third persons, where the duties of the office were exercised . . . . this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and
under color of a known election or appointment, void because the officer was not chief executive officer of the Subic Authority," is declared unconstitutional;
eligible, or because there was a want of power in the electing or appointing body, consequently, the appointment pursuant thereto of the Mayor of Olongapo City,
or by reason of some defect or irregularity in its exercise, such ineligibility, want of respondent Richard J. Gordon, is INVALID, hence NULL and VOID.
power or defect being unknown to the public . . . . [or] under color of an election, or
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.