APPOINTMENT FINALS 1
G.R. No. 92299 April 19, 1991
REYNALDO R. SAN JUAN, petitioner,
vs. CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET
AND MANAGEMENT and CECILIA ALMAJOSE, respondents.
Legal Services Division for petitioner.
Sumulong, Sumulong, Paras & Abano Law Offices for private
respondent.
GUTIERREZ, JR., J.:
In this petition for certiorari pursuant to Section 7, Article IX
(A) of the present Constitution, the petitioner Governor of
the Province of Rizal, prays for the nullification of Resolution
No. 89-868 of the Civil Service Commission (CSC) dated
November 21, 1989 and its Resolution No. 90-150 dated
February 9, 1990.
The dispositive portion of the questioned Resolution reads:
WHEREFORE, foregoing premises considered, the
Commission resolved to dismiss, as it hereby dismisses the
appeal of Governor Reynaldo San Juan of Rizal. Accordingly,
the approved appointment of Ms. Cecilia Almajose as
Provincial Budget Officer of Rizal, is upheld. (Rollo, p. 32)
The subsequent Resolution No. 90-150 reiterates CSC's
position upholding the private respondent's appointment by
denying the petitioner's motion for reconsideration for lack
of merit.
The antecedent facts of the case are as follows:
On March 22, 1988, the position of Provincial Budget Officer
(PBO) for the province of Rizal was left vacant by its former
holder, a certain Henedima del Rosario.
In a letter dated April 18, 1988, the petitioner informed
Director Reynaldo Abella of the Department of Budget and
Management (DBM) Region IV that Ms. Dalisay Santos
assumed office as Acting PBO since March 22, 1988 pursuant
to a Memorandum issued by the petitioner who further
requested Director Abella to endorse the appointment of
the said Ms. Dalisay Santos to the contested position of PBO
of Rizal. Ms. Dalisay Santos was then Municipal Budget
Officer of Taytay, Rizal before she discharged the functions
of acting PBO.
In a Memorandum dated July 26, 1988 addressed to the
DBM Secretary, then Director Abella of Region IV
recommended the appointment of the private respondent
as PBO of Rizal on the basis of a comparative study of all
Municipal Budget Officers of the said province which
included three nominees of the petitioner. According to
Abella, the private respondent was the most qualified since
she was the only Certified Public Accountant among the
contenders.
On August 1, 1988, DBM Undersecretary Nazario S.
Cabuquit, Jr. signed the appointment papers of the private
respondent as PBO of Rizal upon the aforestated
recommendation of Abella.
In a letter dated August 3, 1988 addressed to Secretary
Carague, the petitioner reiterated his request for the
appointment of Dalisay Santos to the contested position
unaware of the earlier appointment made by
Undersecretary Cabuquit.
On August 31, 1988, DBM Regional Director Agripino G.
Galvez wrote the petitioner that Dalisay Santos and his other
recommendees did not meet the minimum requirements
under Local Budget Circular No. 31 for the position of a local
budget officer. Director Galvez whether or not through
oversight further required the petitioner to submit at least
three other qualified nominees who are qualified for the
position of PBO of Rizal for evaluation and processing.
On November 2, 1988, the petitioner after having been
informed of the private respondent's appointment wrote
Secretary Carague protesting against the said appointment
on the grounds that Cabuquit as DBM Undersecretary is not
legally authorized to appoint the PBO; that the private
respondent lacks the required three years work experience
as provided in Local Budget Circular No. 31; and that under
Executive Order No. 112, it is the Provincial Governor, not
the Regional Director or a Congressman, who has the power
to recommend nominees for the position of PBO.
On January 9, 1989 respondent DBM, through its Director of
the Bureau of Legal & Legislative Affairs (BLLA) Virgilio A.
Afurung, issued a Memorandum ruling that the petitioner's
letter-protest is not meritorious considering that public
respondent DBM validly exercised its prerogative in filling-
up the contested position since none of the petitioner's
nominees met the prescribed requirements.
On January 27, 1989, the petitioner moved for a
reconsideration of the BLLA ruling.
On February 28, 1989, the DBM Secretary denied the
petitioner's motion for reconsideration.
On March 27, 1989, the petitioner wrote public respondent
CSC protesting against the appointment of the private
respondent and reiterating his position regarding the
matter.
Subsequently, public respondent CSC issued the questioned
resolutions which prompted the petitioner to submit before
us the following assignment of errors:
A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY
DBM ASSISTANT SECRETARY CABUQUIT OF CECILIA
ALMAJOSE AS PBO OF RIZAL.
B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE
POSSESSES ALL THE REQUIRED QUALIFICATIONS.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S
NOMINEES ARE NOT QUALIFIED TO THE SUBJECT POSITION.
 APPOINTMENT FINALS 2
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR
DISCRETION IN NOT ALLOWING PETITIONER TO SUBMIT
NEW NOMINEES WHO COULD MEET THE REQUIRED
QUALIFICATION (Petition, pp. 7-8, Rollo, pp. 15-16)
All the assigned errors relate to the issue of whether or not
the private respondent is lawfully entitled to discharge the
functions of PBO of Rizal pursuant to the appointment made
by public respondent DBM's Undersecretary upon the
recommendation of then Director Abella of DBM Region IV.
The petitioner's arguments rest on his contention that he
has the sole right and privilege to recommend the nominees
to the position of PBO and that the appointee should come
only from his nominees. In support thereof, he invokes
Section 1 of Executive Order No. 112 which provides that:
Sec. 1. All budget officers of provinces, cities and
municipalities shall be appointed henceforth by the Minister
of Budget and Management upon recommendation of the
local chief executive concerned, subject to civil service law,
rules and regulations, and they shall be placed under the
administrative control and technical supervision of the
Ministry of Budget and Management.
The petitioner maintains that the appointment of the private
respondent to the contested position was made in
derogation of the provision so that both the public
respondents committed grave abuse of discretion in
upholding Almajose's appointment.
There is no question that under Section 1 of Executive Order
No. 112 the petitioner's power to recommend is subject to
the qualifications prescribed by existing laws for the position
of PBO. Consequently, in the event that the
recommendations made by the petitioner fall short of the
required standards, the appointing authority, the Minister
(now Secretary) of public respondent DBM is expected to
reject the same.
In the event that the Governor recommends an unqualified
person, is the Department Head free to appoint anyone he
fancies ? This is the issue before us.
Before the promulgation of Executive Order No. 112 on
December 24, 1986, Batas Pambansa Blg. 337, otherwise
known as the Local Government Code vested upon the
Governor, subject to civil service rules and regulations, the
power to appoint the PBO (Sec. 216, subparagraph (1), BP
337). The Code further enumerated the qualifications for
the position of PBO. Thus, Section 216, subparagraph (2) of
the same code states that:
(2) No person shall be appointed provincial budget officer
unless he is a citizen of the Philippines, of good moral
character, a holder of a degree preferably in law, commerce,
public administration or any related course from a
recognized college or university, a first grade civil service
eligibility or its equivalent, and has acquired at least five
years experience in budgeting or in any related field.
The petitioner contends that since the appointing authority
with respect to the Provincial Budget Officer of Rizal was
vested in him before, then, the real intent behind Executive
Order No. 112 in empowering him to recommend nominees
to the position of Provincial Budget Officer is to make his
recommendation part and parcel of the appointment
process. He states that the phrase "upon recommendation
of the local chief executive concerned" must be given
mandatory application in consonance with the state policy
of local autonomy as guaranteed by the 1987 Constitution
under Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He further
argues that his power to recommend cannot validly be
defeated by a mere administrative issuance of public
respondent DBM reserving to itself the right to fill-up any
existing vacancy in case the petitioner's nominees do not
meet the qualification requirements as embodied in public
respondent DBM's Local Budget Circular No. 31 dated
February 9, 1988.
The questioned ruling is justified by the public respondent
CSC as follows:
As required by said E.O. No. 112, the DBM Secretary may
choose from among the recommendees of the Provincial
Governor who are thus qualified and eligible for
appointment to the position of the PBO of Rizal.
Notwithstanding, the recommendation of the local chief
executive is merely directory and not a condition sine qua
non to the exercise by the Secretary of DBM of his
appointing prerogative. To rule otherwise would in effect
give the law or E.O. No. 112 a different interpretation or
construction not intended therein, taking into consideration
that said officer has been nationalized and is directly under
the control and supervision of the DBM Secretary or through
his duly authorized representative. It cannot be gainsaid that
said national officer has a similar role in the local
government unit, only on another area or concern, to that
of a Commission on Audit resident auditor. Hence, to
preserve and maintain the independence of said officer from
the local government unit, he must be primarily the choice
of the national appointing official, and the exercise thereof
must not be unduly hampered or interfered with, provided
the appointee finally selected meets the requirements for
the position in accordance with prescribed Civil Service Law,
Rules and Regulations. In other words, the appointing official
is not restricted or circumscribed to the list submitted or
recommended by the local chief executive in the final
selection of an appointee for the position. He may consider
other nominees for the position vis a vis the nominees of the
local chief executive. (CSC Resolution No. 89-868, p. 2; Rollo,
p. 31)
The issue before the Court is not limited to the validity of the
appointment of one Provincial Budget Officer. The tug of
war between the Secretary of Budget and Management and
the Governor of the premier province of Rizal over a
seemingly innocuous position involves the application of a
most important constitutional policy and principle, that of
 APPOINTMENT FINALS 3
local autonomy. We have to obey the clear mandate on local
autonomy. Where a law is capable of two interpretations,
one in favor of centralized power in Malacañang and the
other beneficial to local autonomy, the scales must be
weighed in favor of autonomy.
The exercise by local governments of meaningful power has
been a national goal since the turn of the century. And yet,
inspite of constitutional provisions and, as in this case,
legislation mandating greater autonomy for local officials,
national officers cannot seem to let go of centralized
powers. They deny or water down what little grants of
autonomy have so far been given to municipal corporations.
President McKinley's Instructions dated April 7, 1900 to the
Second Philippine Commission ordered the new
Government "to devote their attention in the first instance
to the establishment of municipal governments in which
natives of the Islands, both in the cities and rural
communities, shall be afforded the opportunity to manage
their own local officers to the fullest extent of which they are
capable and subject to the least degree of supervision and
control which a careful study of their capacities and
observation of the workings of native control show to be
consistent with the maintenance of law, order and loyalty.
In this initial organic act for the Philippines, the Commission
which combined both executive and legislative powers was
directed to give top priority to making local autonomy
effective.
The 1935 Constitution had no specific article on local
autonomy. However, in distinguishing between presidential
control and supervision as follows:
The President shall have control of all the executive
departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided
by law, and take care that the laws be faithfully executed.
(Sec. 11, Article VII, 1935 Constitution)
the Constitution clearly limited the executive power over
local governments to "general supervision . . . as may be
provided by law." The President controls the executive
departments. He has no such power over local governments.
He has only supervision and that supervision is both general
and circumscribed by statute.
In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court
stated:
. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then
Justice, now Chief Justice, Concepcion as theponente,
clarified matters. As was pointed out, the presidential
competence is not even supervision in general, but general
supervision as may be provided by law. He could not thus go
beyond the applicable statutory provisions, which bind and
fetter his discretion on the matter. Moreover, as had been
earlier ruled in an opinion penned by Justice Padilla in
Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to by the
present Chief Justice in his opinion in the Hebron case,
supervision goes no further than "overseeing or the power
or authority of an officer to see that subordinate officers
perform their duties. If the latter fail or neglect to fulfill them
the former may take such action or step as prescribed by law
to make them perform their duties." (Ibid, pp. 147-148)
Control, on the other hand, "means the power of an officer
to alter or modify or nullify or set aside what a subordinate
had done in the performance of their duties and to
substitute the judgment of the former for that of the latter."
It would follow then, according to the present Chief Justice,
to go back to the Hebron opinion, that the President had to
abide by the then provisions of the Revised Administrative
Code on suspension and removal of municipal officials, there
being no power of control that he could rightfully exercise,
the law clearly specifying the procedure by which such
disciplinary action would be taken.
Pursuant to this principle under the 1935 Constitution,
legislation implementing local autonomy was enacted. In
1959, Republic Act No. 2264, "An Act Amending the Law
Governing Local Governments by Increasing Their
Autonomy and Reorganizing Local Governments" was
passed. It was followed in 1967 when Republic Act No. 5185,
the Decentralization Law was enacted, giving "further
autonomous powers to local governments governments."
The provisions of the 1973 Constitution moved the country
further, at least insofar as legal provisions are concerned,
towards greater autonomy. It provided under Article II as a
basic principle of government:
Sec. 10. The State shall guarantee and promote the
autonomy of local government units, especially the
barangay to ensure their fullest development as self-reliant
communities.
An entire article on Local Government was incorporated into
the Constitution. It called for a local government code
defining more responsive and accountable local government
structures. Any creation, merger, abolition, or substantial
boundary alteration cannot be done except in accordance
with the local government code and upon approval by a
plebiscite. The power to create sources of revenue and to
levy taxes was specifically settled upon local governments.
The exercise of greater local autonomy is even more marked
in the present Constitution.
Article II, Section 25 on State Policies provides:
Sec. 25. The State shall ensure the autonomy of local
governments
The 14 sections in Article X on Local Government not only
reiterate earlier doctrines but give in greater detail the
provisions making local autonomy more meaningful. Thus,
Sections 2 and 3 of Article X provide:
Sec. 2. The territorial and political subdivisions shall enjoy
local autonomy.
 APPOINTMENT FINALS 4

Sec. 3. The Congress shall enact a local government code be no reservation of the right to fill up a position with a
which shall provide for a more responsive and accountable person of the appointing power's personal choice.
local government structure instituted through a system of
The public respondent's grave abuse of discretion is
decentralization with effective mechanisms of recall,
aggravated by the fact that Director Galvez required the
initiative, and referendum, allocate among the different
Provincial Governor to submit at least three other names of
local government units their powers, responsibilities, and
nominees better qualified than his earlier recommendation.
resources, and provide for the qualifications, election,
It was a meaningless exercise. The appointment of the
appointment and removal, term, salaries, powers and
private respondent was formalized before the Governor was
functions and duties of local officials, and all other matters
extended the courtesy of being informed that his nominee
relating to the organization and operation of the local units.
had been rejected. The complete disregard of the local
When the Civil Service Commission interpreted the government's prerogative and the smug belief that the DBM
recommending power of the Provincial Governor as purely has absolute wisdom, authority, and discretion are manifest.
directory, it went against the letter and spirit of the
In his classic work "Philippine Political Law" Dean Vicente G.
constitutional provisions on local autonomy. If the DBM
Sinco stated that the value of local governments as
Secretary jealously hoards the entirety of budgetary powers
institutions of democracy is measured by the degree of
and ignores the right of local governments to develop self-
autonomy that they enjoy. Citing Tocqueville, he stated that
reliance and resoluteness in the handling of their own funds,
"local assemblies of citizens constitute the strength of free
the goal of meaningful local autonomy is frustrated and set
nations. . . . A people may establish a system of free
back.
government but without the spirit of municipal institutions,
The right given by Local Budget Circular No. 31 which states: it cannot have the spirit of liberty." (Sinco, Philippine Political
Law, Eleventh Edition, pp. 705-706).
Sec. 6.0 — The DBM reserves the right to fill up any existing
vacancy where none of the nominees of the local chief Our national officials should not only comply with the
executive meet the prescribed requirements. constitutional provisions on local autonomy but should also
appreciate the spirit of liberty upon which these provisions
is ultra vires and is, accordingly, set aside. The DBM may
are based.
appoint only from the list of qualified recommendees
nominated by the Governor. If none is qualified, he must WHEREFORE, the petition is hereby GRANTED. The
return the list of nominees to the Governor explaining why questioned resolutions of the Civil Service Commission are
no one meets the legal requirements and ask for new SET ASIDE. The appointment of respondent Cecilia Almajose
recommendees who have the necessary eligibilities and is nullified. The Department of Budget and Management is
qualifications. ordered to appoint the Provincial Budget Officer of Rizal
from among qualified nominees submitted by the Provincial
The PBO is expected to synchronize his work with DBM.
Governor.
More important, however, is the proper administration of
fiscal affairs at the local level. Provincial and municipal SO ORDERED.
budgets are prepared at the local level and after completion
are forwarded to the national officials for review. They are
prepared by the local officials who must work within the
constraints of those budgets. They are not formulated in the
inner sanctums of an all-knowing DBM and unilaterally
imposed on local governments whether or not they are
relevant to local needs and resources. It is for this reason
that there should be a genuine interplay, a balancing of
viewpoints, and a harmonization of proposals from both the
local and national officials. It is for this reason that the
nomination and appointment process involves a sharing of
power between the two levels of government.

It may not be amiss to give by way of analogy the procedure

followed in the appointments of Justices and Judges. Under
Article VIII of the Constitution, nominations for judicial
positions are made by the Judicial and Bar Council. The
President makes the appointments from the list of nominees
submitted to her by the Council. She cannot apply the DBM
procedure, reject all the Council nominees, and appoint
another person whom she feels is better qualified. There can
 APPOINTMENT FINALS 5
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 by way of salaries and other
operational expenses attached to the office . . . ."2 Paragraph
(d) reads —
(d) Chairman administrator — The President shall appoint a
professional manager as administrator of the Subic
Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget,
who shall be the ex oficio chairman of the Board and who
shall serve as the chief executive officer of the Subic
Authority: Provided, however, That for the first year of its
operations from the effectivity of this Act, the mayor of the
City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority (emphasis
supplied).
Petitioners, who claim to be taxpayers, employees of the
U.S. Facility at the Subic, Zambales, and officers and
members of the Filipino Civilian Employees Association in
U.S. Facilities in the Philippines, maintain that the proviso in
par. (d) of Sec. 13 herein-above quoted in italics infringes on
the following constitutional and statutory provisions: (a) Sec.
7, first par., Art. IX-B, of the Constitution, which states that
"[n]o elective official shall be eligible for appointment or
designation in any capacity to any public 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) Sec. 16, Art. VII, of the Constitution, which provides that
"[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint",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), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. — The following shall be guilty of
an election offense: . . . (g) Appointment of new employees,
creation of new position, promotion, or giving salary
increases. — During the period of forty-five days before a
regular election and thirty days before a special election, (1)
any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations,
who appoints or hires any new employee, whether
provisional, temporary or casual, or creates and fills any new
position, except upon prior authority of the Commission.
The Commission shall not grant the authority sought unless
it is satisfied that the position to be filled is essential to the
proper functioning of the office or agency concerned, and
that the position shall not be filled in a manner that may
influence the election. As an exception to the foregoing
provisions, a new employee may be appointed in case of
urgent need: Provided, however, That notice of the
appointment shall be given to the Commission within three
days from the date of the appointment. Any appointment or
hiring in violation of this provision shall be null and void. (2)
Any government official who promotes, or gives any
increase of salary or remuneration or privilege to any
government official or employee, including those in
government-owned or controlled corporations . . . .
for the reason that the appointment of respondent Gordon
to the subject posts made by respondent Executive
Secretary on 3 April 1992 was within the prohibited 45-day
period prior to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par.
(d), of R.A. 7227 which states, "Provided, however, That for
the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority,"
violates the constitutional proscription against appointment
or designation of elective officials to other government
posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The section expresses the policy against the concentration
of several public positions in one person, so that a public
officer or employee may serve full-time with dedication and
thus be efficient in the delivery of public services. It is an
affirmation that a public office is a full-time job. Hence, a
public officer or employee, like the head of an executive
department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the
Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian
Reform, G.R. No. 83815,6 ". . . . should be allowed to attend
to his duties and responsibilities without the distraction of
other governmental duties or employment. He should be
 APPOINTMENT FINALS 6
precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may
result in haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he
basic idea really is to prevent a situation where a local
elective official will work for his appointment in an executive
position in government, and thus neglect his constituents . .
. ."7
In the case before us, the subject proviso directs the
President to appoint an elective official, i.e., the Mayor of
Olongapo City, to other government posts (as Chairman of
the Board and Chief Executive Officer of SBMA). Since this is
precisely what the constitutional proscription seeks to
prevent, it needs no stretching of the imagination to
conclude that the proviso contravenes Sec. 7, first par., Art.
IX-B, of the Constitution. Here, the fact that the expertise of
an elective official may be most beneficial to the higher
interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC)
permits the appointment of a local elective official to
another post if so allowed by law or by the primary functions
of his office.8 But, the contention is fallacious. Section 94 of
the LGC is not determinative of the 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.
 APPOINTMENT FINALS 7
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 for appointment to another public
office.
 APPOINTMENT FINALS 8
Where, as in the case of respondent Gordon, an incumbent
elective official was, notwithstanding his ineligibility,
appointed to other government posts, he does not
automatically forfeit his elective office nor remove his
ineligibility imposed by the Constitution. On the contrary,
since an incumbent elective official is not eligible to the
appointive position, his appointment or designation thereto
cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec.
13, Art. VI, of the Constitution where "(n)o Senator or
Member of the House of Representatives may hold any
other office or employment in the Government . . . during
his term without forfeiting his seat . . . ." The difference
between the two provisions is significant in the sense that
incumbent national legislators lose their elective posts only
after they have been appointed to another government
office, while other incumbent elective officials must first
resign their posts before they can be appointed, thus
running the risk of losing the elective post as well as not
being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ".
. . . The effect is quite different where it is
expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to
incapacitate the incumbent of an office from accepting or
holding a second office (State ex rel. Van Antwerp v Hogan,
283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733,
61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147,
65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v
State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the
constitution, or statutes declare that persons holding one
office shall be ineligible for election or appointment to
another office, either generally or of a certain kind, the
prohibition has been held to incapacitate the incumbent of
the first office to hold the second so that any attempt to hold
the second is void (Ala. — State ex rel. Van Antwerp v.
Hogan, 218 So 2d 258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is
ineligible for appointment to the position of Chairman of the
Board and Chief Executive of SBMA; hence, his appointment
thereto pursuant to a legislative act that contravenes the
Constitution cannot be sustained. He however remains
Mayor of Olongapo City, and his acts as SBMA official are not
necessarily null and void; he may be considered a de
facto officer, "one whose acts, though not those of a lawful
officer, the law, upon principles of policy and justice, will
hold valid so far as they involve the interest of the public and
third persons, where the duties of the office were exercised
. . . . under color of a known election or appointment, void
because the officer was not eligible, or because there was a
want of power in the electing or appointing body, or by
reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the
public . . . . [or] under color of an election, or appointment,
by or pursuant to a public unconstitutional law, before the
same is adjudged to be such (State vs. Carroll, 38 Conn., 499;
Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213;
Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28
Conformably with our ruling in Civil Liberties Union, any and
all per diems, allowances and other emoluments which may
have been received by respondent Gordon pursuant to his
appointment may be retained by him.
The illegality of his appointment to the SBMA posts being
now evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said
respondent made pursuant thereto need no longer be
discussed.
In thus concluding as we do, we can only share the lament
of Sen. Sotero Laurel which he expressed in the floor
deliberations of S.B. 1648, precursor of R.A. 7227, when he
articulated —
. . . . (much) as we would like to have the present Mayor of
Olongapo City as the Chief Executive of this Authority that
we are creating; (much) as I, myself, would like to because I
know the capacity, integrity, industry and dedication of
Mayor Gordon; (much) as we would like to give him this
terrific, burdensome and heavy responsibility, we cannot do
it because of the constitutional prohibition which is very
clear. It says: "No elective official shall be appointed or
designated to another position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable,
like a mountain amidst the strife of storms or a rock in the
ocean amidst the raging of the waves." 30 One of the
characteristics of the Constitution is permanence, i.e., "its
capacity to resist capricious or whimsical change dictated
not by legitimate needs but only by passing fancies,
temporary passions or occasional infatuations of the people
with ideas or personalities . . . . Such a Constitution is not
likely to be easily tampered with to suit political expediency,
personal ambitions or ill-advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice.
We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227,
which states: ". . . Provided, however, That for the first year
of its operations from the effectivity of this Act, the Mayor of
the City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority," is declared
unconstitutional; consequently, the appointment pursuant
thereto of the Mayor of Olongapo City, respondent Richard
J. Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments
received by respondent Gordon, if any, as such Chairman
and Chief Executive Officer may be retained by him, and all
acts otherwise legitimate done by him in the exercise of his
authority as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.
 APPOINTMENT FINALS 9
[G.R. No. 122197. June 26, 1998]
ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON
AUDIT, respondent.
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision
of the Commission on Audit dated September 7, 1995,[1] the
dispositive portion of which reads, to wit:
Foregoing premises considered, the instant appeal cannot
be given due course. Accordingly, the disallowance in
question in the total amount of P52,908.00 is hereby
affirmed. Considering that the claim for the RATA
differential in the amount of P8,400.00 is devoid of any legal
basis, the same is also disallowed. Hence, appellant Zosimo
M. Dimaandal is hereby directed to refund the salary and
RATA differential in the amount of P61,308.00 he had
received from the Provincial Government of Batangas.[2]
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal,
then holding the position of Supply Officer III, was
designated Acting Assistant Provincial Treasurer for
Administration by then Governor Vicente A. Mayo of
Batangas. Pursuant to the designation, petitioner filed a
claim for the difference in salary and Representation and
Transportation Allowance (RATA) of Assistant Provincial
Treasurer and Supply Officer III for the whole year of 1993 in
the total amount of P61,308.00.
However, the Provincial Auditor disallowed in
audit P52,908.00 of the claim. What was allowed was only
the amount of P8,400.00 which corresponds to the
difference in the allowances attached to the designation and
the position occupied by the appellant. The disallowance
was premised on the following reasons:
1. The provisions of Section 2077 of the Revised
Administrative Code is not applicable in the instant case as
the power to fill the position of Assistant Provincial
Treasurer rests on the Secretary of Finance.
2. The designation is temporary in nature and does not
amount to the issuance of an appointment as could entitle
the designee to receive the salary of the position to which
he is designated (Opinion of the Director, Office for Legal
Affairs, Civil Service Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial
Auditor requesting reconsideration of the subject
disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is
applicable in the instant case as the same provides that the
Governor General or the officer having the power to fill-up
a temporary absence or disability in the provincial office has
the power to order or authorize payment of compensation
to any government officer or employee designated or
appointed temporarily to fill the place;
2. That the budget containing an appropriation for the
position of Assistant Provincial Treasurer for Administration
was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as
Acting Provincial Treasurer for Administration was no longer
performing the duties and functions of Supply Officer III."
The Provincial Auditor, however, denied the request for
reconsideration. Appellant was required to refund the
amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit
which sustained the stand of the Provincial Auditor of
Batangas as valid and proper. The respondent Commission
was of the view that the petitioner was merely designated
as an Assistant Provincial Treasurer for Administration in
addition to his regular duties. As such, he is not entitled to
receive an additional salary. The Commission further opined
that petitioner was likewise not entitled to receive the
difference in RATA provided for under the Local Budget
Circular issued by the Department of Budget and
Management considering that the party designating him to
such position is not the duly competent authority, provided
for under Section 471 of the Local Government Code.
Notably, petitioner was appointed as Assistant Provincial
Treasurer for Administration by the Secretary of Finance
only on July 8, 1994.
Thus, the respondent Commission not only affirmed the
disallowance of the amount of P52,908.00 but likewise
disallowed the claim for the RATA differential in the amount
of P8,400.00, for being devoid of any legal basis. Petitioner
was, therefore, directed to refund the salary and RATA
differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is
designated in an acting capacity is entitled to the difference
in salary between his regular position and the higher
position to which he is designated.
Petitioner avers that the respondent Commissions decision
is probably not in accordance with applicable decisions of
the Supreme Court.[3] He cites the cases of Cui, et. al. vs.
Ortiz, et. al.,[4] April 29, 1960; and, Menzon vs. Petilla, May
20, 1991,[5] which laid down the rule that de facto officers
are entitled to salary for services actually
rendered. Petitioner contends that he may be considered as
a de facto officer by reason of services rendered in favor of
the Province of Batangas. He then posits the view that to
disallow his compensation and in the process allow the
Province of Batangas to keep and enjoy the benefits derived
from his services actually rendered would be tantamount to
deprivation of property without due process of law, and
impairment of obligation of contracts duly enshrined in the
Constitution.
 APPOINTMENT FINALS 10
On the other hand, the respondent Commission, through
the Office of the Solicitor General, maintains that the
decisions cited by petitioner do not find application in
petitioners case. In the case of Menzon, what was extended
was an appointment to the vacant position of Vice-
Governor. Here, what was extended to petitioner was not an
appointment but a mere designation. Thus, the nature of
petitioners designation and in the absence of authority of
the Governor to authorize the payment of the additional
salary and RATA without the appropriate resolution from the
Sangguniang Panlalawigan does not make the ruling on de
facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he
could still claim the salary and RATA differential because he
actually performed the functions pertaining to the office of
Acting Assistant Provincial Treasurer and, therefore, entitled
to the salary and benefits attached to it despite the fact that
the Governor of Batangas had no authority to designate him
to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise
known as the Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. - (a) An assistant treasurer
may be appointed by the Secretary of Finance from a list of
at least three (3) ranking eligible recommendees of the
governor or mayor, subject to civil service law, rules and
regulations.
xxxxxxxxx
In fact, the appointing officer is authorized by law to order
the payment of compensation to any government officer or
employee designated or appointed to fill such vacant
position, as provided under Section 2077 of the Revised
Administrative Code which states that:
"Section 2077. Compensation for person appointed to
temporary service.
xxxxxxxxx
In case of the temporary absence or disability of a provincial
officer or in case of a vacancy in a provincial office, the
President of the Philippines or officer having the power to
fill such position may, in his discretion, order the payment of
compensation, or additional compensation, to any
Government officer or employee designated or appointed
temporarily to fill the place, but the total compensation paid
shall not exceed the salary authorized by law for the position
filled.
Undoubtedly, the aforecited laws do not authorize the
Provincial Governor to appoint nor even designate one
temporarily in cases of temporary absence or disability or a
vacancy in a provincial office. That power resides in the
President of the Philippines or the Secretary of Finance.
Necessarily, petitioners designation as Assistant Provincial
Treasurer for Administration by Governor Mayo being
defective, confers no right on the part of petitioner to claim
the difference in the salaries and allowances attached to the
position occupied by him.
Moreover, what was extended to petitioner by Governor
Mayo was merely a designation not an appointment. The
respondent Commission clearly pointed out the difference
between an appointment and designation, thus:
There is a great difference between an appointment and
designation. While an appointment is the selection by the
proper authority of an individual who is to exercise the
powers and functions of a given office, designation merely
connotes an imposition of additional duties, usually by law,
upon a person already in the public service by virtue of an
earlier appointment (Santiago vs. COA, 199 SCRA 125).
Designation is simply the mere imposition of new or
additional duties on the officer or employee to be
performed by him in a special manner. It does not entail
payment of additional benefits or grant upon the person so
designated the right to claim the salary attached to the
position (COA Decision No. 95-087 dated February 2,
1995). As such, there being no appointment issued,
designation does not entitle the officer designated to
receive the salary of the position. For the legal basis of an
employees right to claim the salary attached thereto is a duly
issued and approved appointment to the position (Opinion
dated January 25, 1994 of the Office for Legal Affairs, Civil
Service Commission, Re: Evora, Carlos, A. Jr., Designation).[6]
This Court has time and again ruled that:
Although technically not binding and controlling on the
courts, the construction given by the agency or entity
charged with the enforcement of a statute should be given
great weight and respect (In re Allen, 2 Phil. 630, 640),
particularly so if such construction, as in the case at bar, has
been uniform, and consistent, and has been observed and
acted on for a long period of time (Molina vs. Rafferty, 38
Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar
Central vs. Collector of Customs, 51 Phil. 143).[7]
We see no justifiable reason to sustain petitioners argument
that non-payment of his salary differential and RATA would
be a violation of his constitutional right against deprivation
of property without due process of law and the non-
impairment of obligation of contracts clause in the
Constitution.
The right to the salary of an Assistant Provincial Treasurer is
based on the assumption that the appointment or
designation thereof was made in accordance with
law. Considering that petitioners designation was without
color of authority, the right to the salary or an allowance due
from said office never existed. Stated differently, in the
absence of such right, there can be no violation of any
 APPOINTMENT FINALS 11

constitutional right nor an impairment of the obligation of as de facto officers and entitled to salaries for services
contracts clause under the Constitution. actually rendered.

The nature of petitioners designation and the absence of
authority of the Governor to authorize the payment of the
additional salary and RATA without the appropriate
resolution from the Sangguniang Panlalawigan does not
make him a de facto officer.
Finally, the appointment signed by Finance Undersecretary
Juanita D. Amatong is dated July 8, 1994. Petitioners claim
that the appointment retro-acts to his assumption of office
is not confirmed by the express phraseology of the
appointment itself, which states:

A de facto officer is defined as one who derives his
appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose
appointment is valid on its face. It is likewise defined as one
who is in possession of an office, and is discharging its duties
under color of authority, by which is meant authority
derived from an appointment, however irregular or
informal, so that the incumbent be not a mere
volunteer.[8] Then a de facto officer is one who is in
possession of an office in the open exercise of its functions
under color of an election or an appointment, even though
such election or appointment may be irregular.[9]
Petitioner invokes in his favor the ruling in Menzon vs.
Petilla,[10] that a de facto officer is entitled to receive the
salary for services actually rendered. However, his reliance
on the Menzon case is misplaced. In Menzon, what was
extended was an appointment to the vacant position of
Vice-Governor, in petitioners’ case, he was designated. The
appointment of Menzon had the color of validity. This Court
said:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER
FOR ADMINISTRATION na may
katayuang PERMANENT sa OFFICE OF THE PROVINCIAL
TREASURER OF BATANGAS sa pasahod na ONE HUNDRED
TWENTY ONE THOUSAND SIX HUNDRED TWENTY
(P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng
pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma
ng puno ng tanggapan o appointing authority.[12]
The subsequent appointment of petitioner to the position
on July 8, 1994, cannot justify petitioners retention of the
excess amount of P61,308.00, which corresponds to the
amount disallowed and ordered refunded by COA
representing the salary and RATA in excess of what was due
him in 1993.
WHEREFORE, premises considered, the petition is hereby
DISMISSED for lack of merit.
SO ORDERED.

And finally, even granting that the President, acting through

the Secretary of Local Government, possesses no power to
appoint the petitioner, at the very least, the petitioner is a
de facto officer entitled to compensation. There is no
denying that the petitioner assumed the Office of the Vice-
Governor under a color of a known appointment. As
revealed by the records, the petitioner was appointed by no
less than the alter ego of the President, The Secretary of
Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department
of Local Government Regional Director Res
Salvatierra. Concededly, the appointment has the color of
validity.

Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does
not apply in petitioners case. In Cui, this Court held:

Petitioners appointments on December 1 and 12, 1955 by

the then mayor of the municipality were legal and in order,
the appointing mayor still in possession of his right to
appoint. For such appointments to be complete, the
approval of the President of the Philippines is required. The
law provides that pending approval of said appointment by
the President, the appointee may assume office and receive
salary for services actually rendered. Accordingly, therefore,
in that duration until the appointment is finally acted upon
favorably or unfavorably, the appointees may be considered
 APPOINTMENT FINALS 12
[G.R. No. 118883. January 16, 1998]
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES,
Represented by VICE MAYOR NENITO AQUINO and MAYOR
LYDIA T. ROMANO, petitioner,vs. COURT OF APPEALS and
AUGUSTO T. ANTONIO, respondents.
DECISION
PANGANIBAN, J.:
Although a resignation is not complete without an
acceptance thereof by the proper authority, an office may
still be deemed relinquished through voluntary
abandonment which needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules
of Court seeking a reversal of the Decision[1] of the Court of
Appeals[2] promulgated on January 31, 1995 in CA-G.R. SP
No. 34158, which modified the Decision dated February 18,
1994 of the Regional Trial Court[3] of Virac, Catanduanes,
Branch 42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the
appellate court reads:
WHEREFORE, the judgment appealed from is hereby
MODIFIED such that paragraphs 1, 2 and 4 thereof are
deleted. Paragraph 3 is AFFIRMED. No pronouncement as to
costs.[4]
Antecedent Facts
Private Respondent Augusto T. Antonio was elected
barangay captain of Sapang Palay, San Andres, Catanduanes
in March 1989. He was later elected president of the
Association of Barangay Councils (ABC)[5] for the
Municipality of San Andres, Catanduanes. In that capacity
and pursuant to the Local Government Code of 1983, he was
appointed by the President as member of the Sangguniang
Bayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department
of Interior and Local Government (DILG) declared the
election for the president of the Federation of the
Association of Barangay Councils (FABC) of the same
province, in which private respondent was a voting member,
void for want of a quorum. Hence, a reorganization of the
provincial council became necessary. Conformably, the DILG
secretary designated private respondent as a temporary
member of the Sangguniang Panlalawigan of the Province of
Catanduanes, effective June 15, 1990.
In view of his designation, private respondent resigned as a
member of the Sangguniang Bayan. He tendered his
resignation[6] dated June 14, 1990 to Mayor Lydia T. Romano
of San Andres, Catanduanes, with copies furnished to the
provincial governor, the DILG and the municipal
treasurer. Pursuant to Section 50 of the 1983 Local
Government Code[7] (B.P. Blg. 337), Nenito F. Aquino, then
vice-president of the ABC, was subsequently appointed by
the provincial governor as member of the Sangguniang
Bayan[8] in place of private respondent. Aquino assumed
office on July 18, 1990 after taking his oath.[9]
Subsequently, the ruling of DILG Secretary Santos annulling
the election of the FABC president was reversed by the
Supreme Court in Taule vs. Santos.[10] In the same case, the
appointment of Private Respondent Antonio as sectoral
representative to the Sangguniang Panlalawigan was
declared void, because he did not possess the basic
qualification that he should be president of the federation
of barangay councils.[11] This ruling of the Court became final
and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the
members of the Sangguniang Bayan of San Andres advising
them of his re-assumption of his original position, duties and
responsibilities as sectoral representative[12] therein. In
response thereto, the Sanggunian issued Resolution No. 6,
Series of 1992, declaring that Antonio had no legal basis to
resume office as a member of the Sangguniang Bayan.[13]
On August 13, 1992, private respondent sought from the
DILG a definite ruling relative to his right to resume his office
as member of the Sangguniang Bayan.[14] Director Jacob F.
Montesa, department legal counsel of the DILG, clarified
Antonios status in this wise:
Having been elected President of the ABC in
accordance with the Departments Memorandum Circular
No. 89-09,[15] you became an ex-officio member in
the sanggunian. Such position has not been vacated
inasmuch as you did not resign nor abandon said office when
you were designated as temporary representative of the
Federation to the Sangguniang Panlalawigan of
Catanduanes on June 7, 1990. The Supreme Court in Triste
vs. Leyte State College Board of Trustees (192 SCRA 327),
declared that: designation implies temporariness. Thus, to
designate a public officer to another position may mean to
vest him with additional duties while he performs the
functions of his permanent office. In some cases, a public
officer may be designated to a position in an acting capacity
as when an undersecretary is designated to discharge the
functions of the Secretary pending the appointment of a
permanent Secretary.
Furthermore, incumbent ABC presidents are mandated by
the Rules and Regulations Implementing the 1991 Local
Government Code to continue to act as president of the
association and to serve as ex-officio members of
the sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and
Regulations of Rep. Act No. 7160, provides that:
The incumbent presidents of the municipal, city and
provincial chapters of the liga shall continue to serve as ex-
officio members of the sanggunianconcerned until the
 APPOINTMENT FINALS 13
expiration of their term of office, unless sooner removed for
cause.
(f) x x x Pending election of the presidents of the municipal,
city, provincial and metropolitan chapters of the liga, the
incumbent presidents of the association of barangay
councils in the municipality, city, province and Metropolitan
Manila, shall continue to act as president of the
corresponding ligachapters under this Rule.
In view of the foregoing, considering that the annuled
designation is only an additional duty to your primary
function, which is the ABC President, we find no legal
obstacle if you re-assume your representation in
the sanggunian bayan as ex-officio member.[16]
Despite this clarification, the local legislative body issued
another resolution[17] reiterating its previous stand.
In response to private respondents request,[18] Director
Montesa opined that Antonio did not relinquish or abandon
his office; and that since he was the duly elected ABC
president, he could re-assume his position in the
Sanggunian.[19] A copy of said reply was sent to the members
of the local legislative body.
Notwithstanding, the Sanggunian refused to acknowledge
the right of private respondent to re-assume office as
sectoral representative.
On December 10, 1992, private respondent filed a petition
for certiorari and mandamus with preliminary mandatory
injunction and/or restraining order before the RTC. On
February 18, 1994, the trial court rendered its decision
holding that Augusto T. Antonios resignation from
the Sangguniang Bayan was ineffective and inoperative,
since there was no acceptance thereof by the proper
authorities. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered in favor of the petitioner and against the
respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount
of P10,000.00 as attorneys fees and the cost of the suit;
(2) to allow petitioner to assume his position as sectoral
representative of the Sangguniang Bayan of San Andres,
Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected
salaries similar to those received by the other members of
the Sangguniang Bayanof San Andres, Catanduanes as
certified to by the Municipal Budget Officer and Municipal
Treasurer of the same municipality from April 8, 1992 up to
the date of this judgment; and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and
void and to have no effect.[20]
Petitioners appealed this judgment to the Court of Appeals.
Appellate Courts Ruling
Respondent Court of Appeals affirmed the trial courts ruling
but deleted the first, second and fourth paragraphs of its
dispositive portion. It held that private respondents
resignation was not accepted by the proper authority, who
is the President of the Philippines. While the old Local
Government Code is silent as to who should accept and act
on the resignation of any member of the Sanggunian, the
law vests in the President the power to appoint members of
the local legislative unit. Thus, resignations must be
addressed to and accepted by him. It added that, though the
secretary of the DILG is the alter ego of the President and
notice to him may be considered notice to the President, the
records are bereft of any evidence showing that the DILG
secretary received and accepted the resignation letter of
Antonio.
Moreover, granting that there was complete and effective
resignation, private respondent was still the president of the
ABC and, as such, he was qualified to sit in the Sangguniang
Bayan in an ex officio capacity by virtue of Section 494[21] of
R.A. 7160[22] and Memorandum Circular No. 92-38.[23] In
view, however, of the May 1994 elections in which a new set
of barangay officials was elected, Antonios reassumption of
office as barangay representative to the Sangguniang Bayan
was no longer legally feasible.
The appellate court added that private respondent could not
be considered to have abandoned his office. His designation
as member of the Sangguniang Panlalawigan was merely
temporary and not incompatible with his position as
president of the ABC of San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorneys
fees for being without basis, and held that Resolution Nos. 6
and 28 of the Sangguniang Bayan of San Andres involved a
valid exercise of the powers of said local body. It thus
modified the trial courts judgment by affirming paragraph 3
and deleting the other items. Unsatisfied, petitioners
brought the present recourse.[24]
Issues
The petitioner, in its memorandum,[25] submits before this
Court the following issues:
I. Whether or not respondents resignation as ex-officio
member of Petitioner Sangguniang Bayan ng San Andres,
Catanduanes is deemed complete so as to terminate his
official relation thereto;
II. Whether or not respondent had totally abandoned his ex-
officio membership in Petitioner Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries
similar to those received by other members of Petitioner
Sangguniang Bayan from April 8, 1992 up to date of
judgment in this case by the Regional Trial Court of Virac,
Catanduanes.[26]
 APPOINTMENT FINALS 14
In sum, was there a complete and effective resignation? If
not, was there an abandonment of office?
This Court’s Ruling
The petition is meritorious. Although the terms of office of
barangay captains, including private respondent, elected in
March 1989 have expired, the Court deemed it necessary to
resolve this case, as the Court of Appeals had ordered the
payment of the uncollected salaries allegedly due prior to
the expiration of Respondent Antonios term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private
respondent was valid and effective despite the absence of
an express acceptance by the President of the
Philippines. The letter of resignation was submitted to the
secretary of the DILG, an alter ego of the President, the
appointing authority. The acceptance of respondents
resignation may be inferred from the fact that the DILG
secretary himself appointed him a member of the
Sangguniang Panlalawigan of Catanduanes.[27]
In Ortiz vs. COMELEC,[28] we defined resignation as the act of
giving up or the act of an officer by which he declines his
office and renounces the further right to use it. It is an
expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and
relinquish the office and the acceptance by competent and
lawful authority. To constitute a complete and operative
resignation from public office, there must be: (a) an
intention to relinquish a part of the term; (b) an act of
relinquishment; and (c) an acceptance by the proper
authority.[29] The last one is required by reason of Article 238
of the Revised Penal Code.[30]
The records are bereft of any evidence that private
respondents resignation was accepted by the proper
authority. From the time that he was elected as punong
barangay up to the time he resigned as a member of
Sangguniang Bayan, the governing law was B.P. 337 or the
Local Government Code of 1983. While said law was silent
as to who specifically should accept the resignation of an
appointive member of the Sangguniang Bayan, Sec. 6 of Rule
XIX of its implementing rules states that the [r]esignation of
sanggunian members shall be acted upon by the sanggunian
concerned, and a copy of the action taken shall be furnished
the official responsible for appointing a replacement and the
Ministry of Local Government. The position shall be deemed
vacated only upon acceptance of the resignation.
It is not disputed that private respondents resignation letter
was addressed only to the municipal mayor of San Andres,
Catanduanes. It is indicated thereon that copies were
furnished the provincial governor, the municipal treasurer
and the DILG. Neither the mayor nor the officers who had
been furnished copies of said letter expressly acted on it. On
hindsight, and assuming arguendo that the aforecited Sec. 6
of Rule XIX is valid and applicable, the mayor should have
referred or endorsed the latter to the Sangguniang Bayan for
proper action. In any event, there is no evidence that the
resignation was accepted by any government functionary or
office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. - (1) The sangguniang bayan shall be
the legislative body of the municipality and shall be
composed of the municipal mayor, who shall be the
presiding officer, the vice-mayor, who shall be the presiding
officer pro tempore, eight members elected at large, and the
members appointed by the President consisting of the
president of the katipunang bayan and the president of
the kabataang barangay municipal federation. x x
x. (Emphasis supplied.)
Under established jurisprudence, resignations, in the
absence of statutory provisions as to whom they should be
submitted, should be tendered to the appointing person or
body.[31]Private respondent, therefore, should have
submitted his letter of resignation to the President or to his
alter ego, the DILG secretary. Although he supposedly
furnished the latter a copy of his letter, there is no
showing that it was duly received, much less, that it was
acted upon. The third requisite being absent, there was
therefore no valid and complete resignation.
Second Issue: Abandonment of Office
While we agree with Respondent Court that the resignation
was not valid absent any acceptance thereof by the proper
authority, we nonetheless hold that Private Respondent
Antonio has effectively relinquished his membership in the
Sangguniang Bayan due to his voluntary abandonment of
said post.
Abandonment of an office has been defined as the voluntary
relinquishment of an office by the holder, with the intention
of terminating his possession and control thereof.[32] Indeed,
abandonment of office is a species of resignation; while
resignation in general is a formal
relinquishment, abandonment is a voluntary relinquishment
through nonuser.[33] Nonuser refers to a neglect to use a
privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to
exercise an easement or an office (Blacks Law Dictionary, 6th
ed.).
Abandonment springs from and is accompanied by
deliberation and freedom of choice.[34] Its concomitant
effect is that the former holder of an office can no longer
legally repossess it even by forcible reoccupancy.[35]
Clear intention to abandon should be manifested by the
officer concerned. Such intention may be express or inferred
from his own conduct.[36] Thus, the failure to perform the
duties pertaining to the office must be with the officers
actual or imputed intention to abandon and relinquish the
office.[37] Abandonment of an office is not wholly a matter of
intention; it results from a complete abandonment of duties
 APPOINTMENT FINALS 15
of such a continuance that the law will infer a
relinquishment.[38] Therefore, there are two essential
elements of abandonment: first, an intention to abandon
and, second, an overt or external act by which the intention
is carried into effect. [39]
Petitioner argues that the following clearly demonstrate
private respondents abandonment of his post in the
Sangguniang Bayan:
Admittedly, the designation of respondent as member of the
Sangguniang Panlalawigan of Catanduanes was worded
temporary, but his acts more than clearly established his
intention to totally abandon his office, indicating an absolute
relinquishment thereof. It bears to emphasize that
respondent actually tendered his resignation and
subsequently accepted an ex-officio membership in the
Sangguniang Panlalawigan of Catanduanes. He performed
his duties and functions of said office for almost two (2)
years, and was completely aware of the appointment and
assumption on July 18, 1990 of Nenito F. Aquino, who was
then Vice-President of the Association of Barangay Councils
(ABC) of San Andres, Catanduanes, as ex-officio member of
petitioner Sangguniang Bayan representing the ABC.
xxxxxxxxx
Moreover, it may be well-noted that ABC Vice President
Nenito Aquino assumed respondents former position for
twenty (20) months, without him questioning the term of
office of the former if indeed respondents designation as ex-
officio member of the Sangguniang Panlalawigan was only
temporary. Likewise, for almost eight (8) months after
knowledge of the decision in Taule vs. Santos, et. al.,
Ibid., nullifying his designation as representative to the
Sangguniang Panlalawigan, respondent opted to remain
silent, and in fact failed to seasonably act for the purpose of
reassuming his former position. Evidently, respondent had
clearly abandoned his former position by voluntary
relinquishment of his office through non-
[40]
user. [Underscoring supplied.]
We agree with petitioner. Indeed, the following clearly
manifest the intention of private respondent to abandon his
position: (1) his failure to perform his function as member of
the Sangguniang Bayan, (2) his failure to collect the
corresponding remuneration for the position, (3) his failure
to object to the appointment of Aquino as his replacement
in the Sangguniang Bayan, (4) his prolonged failure to
initiate any act to reassume his post in the Sangguniang
Bayan after the Supreme Court had nullified his designation
to the Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate
that he had effected his intention: (1) his letter of
resignation from the Sangguniang Bayan;[41] (2) his
assumption of office as member of the Sangguniang
Panlalawigan, (3) his faithful discharge of his duties and
functions as member of said Sanggunian, and (4) his receipt
of the remuneration for such post.
It must be stressed that when an officer is designated to
another post, he is usually called upon to discharge duties in
addition to his regular responsibilities. Indeed, his additional
responsibilities are prescribed by law to inhere, as it were,
to his original position. A Supreme Court justice, for
instance, may be designated member of the House of
Representatives Electoral Tribunal. In some cases, a public
officer may be designated to a position in an acting capacity,
as when an undersecretary is tasked to discharge the
functions of a secretary for a temporary period.[42] In all
cases, however, the law does not require the public servant
to resign from his original post. Rather, the law allows him
to concurrently discharge the functions of both offices.
Private respondent, however, did not simultaneously
discharge the duties and obligations of both
positions. Neither did he, at that time, express an intention
to resume his office as member of the Sangguniang
Bayan. His overt acts, silence, inaction and acquiescence,
when Aquino succeeded him to his original position, show
that Antonio had abandoned the contested office. His
immediate and natural reaction upon Aquinos appointment
should have been to object or, failing to do that, to file
appropriate legal action or proceeding. But he did neither. It
is significant that he expressed his intention to resume office
only on March 31, 1992, after Aquino had been deemed
resigned on March 23, 1992, and months after this Court
had nullified his designation on August 12, 1991. From his
passivity, he is deemed to have recognized the validity of
Aquinos appointment and the latters discharge of his duties
as a member of the Sangguniang Bayan.
In all, private respondents failure to promptly assert his
alleged right implies his loss of interest in the position. His
overt acts plainly show that he really meant his resignation
and understood its effects. As pointed out by the eminent
American commentator, Mechem:[43]
Public offices are held upon the implied condition that the
officer will diligently and faithfully execute the duties
belonging to them, and while a temporary or accidental
failure to perform them in a single instance or during a short
period will not operate as an abandonment, yet if the officer
refuses or neglects to exercise the functions of the office for
so long a period as to reasonably warrant the presumption
that he does not desire or intend to perform the duties of
the office at all, he will be held to have abandoned it, not
only when his refusal to perform was wilful, but also where,
while he intended to vacate the office, it was because he in
good faith but mistakenly supposed he had no right to hold
it.
Lastly, private respondent, who remained ABC president,
claims the legal right to be a member of the Sangguniang
Bayan by virtue of Section 146 of B.P. Blg. 337. However, his
right thereto is not self-executory, for the law itself requires
 APPOINTMENT FINALS 16

another positive act -- an appointment by the President or

the secretary of local government per E.O. 342.[44] What
private respondent could have done in order to be able to
reassume his post after Aquinos resignation was to seek a
reappointment from the President or the secretary of local
government. By and large, private respondent cannot claim
an absolute right to the office which, by his own actuations,
he is deemed to have relinquished.[45]

We reiterate our ruling in Aparri vs. Court of Appeals: [46]

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 x x x. 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 x
x x. 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 x x
x.

Third Issue: Salary

Having ruled that private respondent had voluntarily

abandoned his post at the Sangguniang Bayan, he cannot be
entitled to any back salaries. Basic is the no work, no
pay[47] rule. A public officer is entitled to receive
compensation for services actually rendered for as long as
he has the right to the office being claimed.[48] When the act
or conduct of a public servant constitutes a relinquishment
of his office, he has no right to receive any salary incident to
the office he had abandoned.[49]

WHEREFORE, the petition is GRANTED and the Assailed

Decision is REVERSED and SET ASIDE. No costs.

SO ORDERED.
 APPOINTMENT FINALS 17
[G.R. No. 127631. December 17, 1999]
Atty. ANGEL AGUIRRE JR. as City Legal Officer of Manila; Atty.
DOMINADOR MAGLALANG, Atty. MA. THERESA BALAGTAS
and Atty. ANALYN T. MARCELO, all members of the Legal
Panel of the Office of the City Legal Officer of
Manila, petitioners, vs. EVANGELINE C. DE
CASTRO, respondents.
DECISION
PANGANIBAN, J.:
The city legal officer of Manila has no disciplinary authority
over the chief of the Legal Affairs and Complaint Services of
the Division of City Schools of Manila. Inasmuch as the said
official was appointed by and is a subordinate of the regional
director of the Department of Education, Culture and Sports,
she is subject to the supervision and control of said
director. The power to appoint carries the power to remove
or to discipline. The mere fact that her salary is sourced from
city funds does not ipso facto place her under the city legal
officer's disciplinary jurisdiction, absent any clear statutory
basis therefor.
The Case
Before this Court is a Petition for Review on
Certiorari[1] under Rule 45 of the Rules of Court seeking
reversal of the October 22, 1996 Decision[2] of the Court of
Appeals (CA)[3] in CA-GR SP No. 40183, the dispositive
portion of which reads:
WHEREFORE, premises considered, the petition is GRANTED
and the public respondent City Legal Office of Manila is
directed to permanently cease and desist from further
proceeding with Administrative Case CLO No. 24-96.[4]
Likewise assailed is the CAs December 23, 1996
Resolution[5]denying reconsideration.
The Facts
The undisputed facts of the case are summarized by the
Court of Appeals as follows:
[Respondent][6] Atty. Evangeline C. De Castro is the Chief of
the Legal Affairs and Complaint Services of the Division of
City Schools of Manila. On February 1, 1996, [respondent]
received a letter from public respondent Angel Aguirre, Jr.,
City Legal Officer of Manila accompanied by copies of
alleged complaints against her. [Respondent] was required
in the said letter to explain within seventy two (72) hours
upon receipt why no administrative sanctions shall be
imposed upon her for gross misconduct and conduct
unbecoming x x x a public officer in violation of the Civil
Service Law, Rules and Regulations.
"On February 6, 1996, [Respondent] Evangeline de Castro
filed her answer-affidavit which was received on the same
day by the Office of the City Legal Officer.
"Subsequently, on February 13, 1996, City Legal Officer
Angel Aguirre, Jr. notified the [respondent] that her answer-
affidavit was found unsatisfactory for which reason she was
summoned to appear before the said City Legal Officer for
the purpose of conducting a formal investigation.
"Two (2) days later or on February 15, 1996, [respondent]
filed a motion to dismiss. She claimed that she [was] a
subordinate of the Secretary of the Department of
Education, Culture and Sports (DECS). Thus, the case should
be endorsed to the Office of the DECS Secretary or its legal
division as nowhere in RA 409, Charter of the City of Manila
is there a provision conferring upon the Office of the City
Legal Officer jurisdiction to try and investigate personnel of
the DECS in general, or the Division of City Schools where
petitioner is under, in particular.
"This motion to dismiss of [respondent] was denied in a
resolution of the City Legal Officer dated February 21, 1996
citing Sec. 455 b(1) and (V) of the Local Government Code
and Section 3(c) of the same code. In the said resolution it
was held that the records of the personnel office disclose[d]
that [respondent was] included in the plantilla of the City of
Manila and therefore her salary derived wholly and mainly
from the funds of the City for which reason she [was] subject
to the disciplinary authority of the said City Legal Officer.
"Thereafter, on February 26, 1996, [respondent] was
notified to appear before the panel formed by the City Legal
Officer (CLO Panel) to hear administrative case CLO 24-96
filed against her for grave misconduct and conduct
unbecoming x x x a public officer.
"[Respondent] filed a motion to reconsider the resolution
dated February 21, 1996. This motion was again denied by
the CLO panel in its order dated March 6, 1996.
"Again, [respondent] moved to reconsider the above order
which was likewise denied in the resolution of the CLO panel
dated March 18, 1996."[7]
Consequently, respondent elevated the matter to the Court
of Appeals via a Petition for Certiorari and Prohibition.
Ruling of the Court of Appeals
Citing the Administrative Code of 1987,[8] the Court of
Appeals ruled that the authority to discipline herein
respondent rests with the regional director for the National
Capital Region of the Department of Education, Culture and
Sports (DECS), not with the city legal officer of Manila. It also
held that the Local Government Code (LGC) did not repeal
the pertinent provisions of the Administrative Code.Hence,
absent any contrary provision of the LGC, the CA opined that
disciplinary authority over petitioner must remain with the
DECS.
The CA also noted that officers and staff members of the
Division of City Schools were not among those whom the city
mayor was authorized to appoint under the LGC. Hence, it
ruled that respondent was not an employee of the City of
 APPOINTMENT FINALS 18
Manila, and that the city legal officer had no authority to
investigate her for administrative neglect or misconduct in
office.
Assuming arguendo that the city mayor was authorized to
make a subsequent appointment to the respondents
position should it become vacant, the CA held that this
power was not retroactive and could not apply to
respondent who had been appointed by the regional
director of the DECS.
Dissatisfied, the city legal officer of Manila lodged this
Petition before this Court on January 21, 1997.[9]
Issue
The solitary issue presented for the Courts consideration is
whether or not the Office of the City Legal Officer of Manila
has jurisdiction to investigate the complaint for grave
misconduct filed against the respondent.[10]
This Courts Ruling
The Petition is bereft of merit.
Sole Issue: Jurisdiction of the City Legal Officer
Petitioners contend that respondent is a city employee
under the supervision of the city mayor, because her salary
is paid by the City of Manila. They base this argument on
Section 455 (b-1-v)[11] of the Local Government Code (LGC),
which authorizes the city mayor to appoint city employees
whose salaries and wages are wholly or mainly paid out of
city funds; and on Section 455 (b-1-x),[12] which states that
the mayor may institute administrative or judicial
proceedings against erring city officials or employees.
Petitioners contentions are not persuasive. Under Book IV,
Chapter V, Section 7(4) of the Administrative Code of 1987,
the power to appoint and discipline first-level employees,
which includerespondent, is specifically lodged with the
regional director of the Department of Education, Culture
and Sports.
xxxxxxxxx
(4) Appoint personnel to positions in the first level and
casual and seasonal employees; and exercise disciplinary
actions over them in accordance with the Civil Service Law."
This is also clear in Book V, Section 47 (2) of the same Code;
and in Section 32, Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987.
SEC. 32. The Secretaries and heads of agencies and
instrumentalities, provinces, cities, and municipalities shall
have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under
their jurisdiction. x x x.
We agree with the CA that the LGC did not automatically
repeal the provisions in the 1987 Administrative Code,
contrary to petitioners argument. There is no provision in
the LGC expressly rescinding the authority of the DECS
regional director to appoint and exercise disciplinary
authority over first-level employees. On the other hand,
implied repeals are not lightly presumed in the absence of a
clear and unmistakable showing of such intention.[13]
Furthermore, respondents position as senior legal officer in
the Division of City Schools is not one of the offices covered
by the city mayors power of appointment under the LGC.
SEC. 454. Officials of the City Government. --- (a) There shall
be in each city a mayor, a vice-mayor, sangguniang
panlungsod members, a secretary to the sangguniang
panlungsod, a city treasurer, a city assessor, a city
accountant, a city budget officer, a city planning and
development coordinator, a city engineer, a city health
officer, a city civil registrar, a city administrator, a city legal
officer, a city veterinarian, a city social welfare and
development officer, and a city general services officer.
(b) In addition thereto, the city mayor may appoint a city
architect, a city information officer, a city agriculturist, a city
population officer, a city environment and natural resources
officer, and a city cooperatives officer.
x x x x x x x x x.[14]
Moreover, petitioners failed to show a specific provision in
the LGC showing that the power to discipline officials in the
Division of City Schools has been devolved from the regional
director of the DECS to the city mayor. All that Section 17 (4)
of the Local Government Code states is that the city must
provide support for education and other such services and
facilities.
Likewise, Section 455 (b-1-x) of the Local Government Code,
which provides that the city mayor may cause to be
instituted administrative or judicial proceedings against any
official or employee of the city, is not necessarily
incompatible with the provisions of the Administrative Code
of 1987 authorizing the regional director to discipline
national education employees. Nothing prohibits the mayor
from filing complaints against respondent before the DECS.
Petitioners cite paragraph 12, Section 2 (a) of Executive
Order (EO) 503, which states that devolved personnel are
automatically reappointed by the local chief executive. Since
respondent was deemed reappointed by the city mayor, it
follows that the latter can exercise disciplinary authority
over her.
We are not convinced. First, the above provision applies to
devolved personnel, and there is no proof whatsoever that
respondent is one of them. Second, even if respondent can
be considered as a devolved personnel, the cited paragraph
of EO 503 must not be read in isolation from but in
conjunction with the other paragraphs in Section 2 (a).
Thus, paragraph 12 -- along with paragraphs 5, 6, 8, 13 and
14[15]of EO 503 -- deals with safeguards against termination,
reduction of pay and diminution in rank of existing
 APPOINTMENT FINALS 19

personnel; it is not about the power of the mayor to

discipline personnel of the Division of City Schools. In effect,
the said provision serves more to limit the appointing
authority of the city mayor, whose acts must be
circumscribed by the aforecited conditions. It is not
incompatible and can exist with aforecited provisions of the
Administrative Code. Indeed, it cannot be deemed to have
divested the regional director of his disciplining power.

As to petitioners argument that respondents salary is wholly

or mainly paid out of city funds, suffice it to say that the
source of the wages is not the only criteria in determining
whether the payor may be deemed the employer. In fact,
the most important factor is the control test; that is, who has
the power to supervise and direct the work of the employee
concerned?

Absent any contrary statutory provision, the power to

appoint carries with it the power to remove or to
discipline.[16] Since respondent was appointed by the
regional director of DECS, she may be disciplined or
removed by the latter pursuant to law.

Finally, respondents primary duty is to conduct

investigations of cases involving teaching and nonteaching
personnel of the Division of City Schools of Manila. The
report on the results of her investigations is then submitted
for final evaluation to the DECS regional director, who may
approve, disapprove or allow respondent to modify it. This
fact clearly shows that supervision over respondent is
lodged with the regional director, not the mayor.

All in all, petitioners have not convinced us that the Court of

Appeals committed any reversible error.

WHEREFORE, the Petition is hereby DISMISSED and the

assailed Decision AFFIRMED. Costs against petitioners.

SO ORDERED.
 APPOINTMENT FINALS 20
G.R. No. 167472 January 31, 2007
CIVIL SERVICE COMMISSION, Petitioner,
vs. ENGR. ALI P. DARANGINA, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review
on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to reverse the Resolutions
of the Court of Appeals dated October 7, 20041 and March
18, 20052 in CA-G.R. SP No. 71353.
The undisputed facts are:
Engr. Ali P. Darangina, respondent, was a development
management officer V in the Office of Muslim Affairs (OMA).
On September 25, 2000, he was extended a temporary
promotional appointment as director III, Plans and Policy
Services, in the same office. On October 11, 2000, the Civil
Service Commission (CSC), petitioner, approved this
temporary appointment effective for one (1) year from the
date of its issuance unless sooner terminated.
On October 31, 2000, newly appointed OMA Executive
Director Acmad Tomawis terminated the temporary
appointment of respondent on the ground that he is not a
career executive service eligible. Tomawis then appointed
Alongan Sani as director III. But he is not also a career
executive service eligible. Thus, the CSC disapproved his
appointment, stating that respondent could only be
replaced by an eligible.
On appeal by respondent, the CSC issued Resolution No. 01-
1543 dated September 18, 2001 sustaining the termination
of his temporary appointment but ordering the payment of
his salaries from the time he was appointed on September
25, 2000 until his separation on October 31, 2000.
Respondent filed a motion for reconsideration. On March
20, 2002, the CSC issued Resolution No. 02-439 granting the
same with modification in the sense that respondent should
be paid his backwages from the time his employment was
terminated on October 11, 2000 until September 24,
2001, the expiration of his one year temporary appointment.
On April 3, 2002, respondent filed a motion for partial
reconsideration, praying for his reinstatement as director III
and payment of backwages up to the time he shall be
reinstated.
On June 5, 2002, the CSC issued Resolution No. 02-782
denying respondent’s motion for partial reconsideration
being a second motion for reconsideration which is
prohibited.
Respondent then filed a petition for review with the Court
of Appeals, docketed as CA-G.R. SP No. 71353. But in its
Resolution of February 27, 2004, the petition was dismissed
for his failure to implead the OMA Executive Director and
the incumbent of the disputed position.
Respondent filed a motion for reconsideration.
In a Resolution dated October 7, 2004, the Court of Appeals
reconsidered its Decision of February 27, 2004, thus:
ACCORDINGLY, our Decision of February 27, 2004 is
RECONSIDERED and the assailed CSC resolutions are hereby
MODIFIED in that the petitioner is reinstated to his post to
finish his 12-month term with backwages from the date of his
removal until reinstatement.
SO ORDERED.
The CSC filed a motion for reconsideration but it was denied
by the Court of Appeals in a Resolution dated March 28,
2005.
Section 27, Chapter 5, Subtitle A, Title I, Book V of the
Administrative Code of 1987, as amended, classifying the
appointment status of public officers and employees in the
career service, reads:
SEC. 27. Employment Status. – Appointment in the career
service shall be permanent or temporary.
(1) Permanent status. A permanent appointment shall be
issued to a person who meets all the requirements for the
position to which he is being appointed, including
appropriate eligibility prescribed, in accordance with the
provisions of law, rules and standards promulgated in
pursuance thereof.
(2) Temporary appointment. In the absence of appropriate
eligibles and it becomes necessary in the public interest to
fill a vacancy, a temporary appointment shall be issued to a
person who meets all the requirements for the position to
which he is being appointed except the appropriate civil
service eligibility: Provided, That such temporary
appointment shall not exceed twelve months, but the
appointee may be replaced sooner if a qualified civil service
eligible becomes available.
It is clear that a permanent appointment can issue only to a
person who possesses all the requirements for the position
to which he is being appointed, including the appropriate
eligibility.3 Differently stated, as a rule, no person may be
appointed to a public office unless he or she possesses the
requisite qualifications. The exception to the rule is where,
in the absence of appropriate eligibles, he or she may be
appointed to it merely in a temporary capacity. Such a
temporary appointment is not made for the benefit of the
appointee. Rather, an acting or temporary appointment
seeks to prevent a hiatus in the discharge of official functions
by authorizing a person to discharge the same pending the
selection of a permanent appointee.4 In Cuadra v.
Cordova,5 this Court defined a temporary appointment as
"one made in an acting capacity, the essence of which lies in
its temporary character and its terminability at pleasure by
 APPOINTMENT FINALS 21

the appointing power." Thus, the temporary appointee

accepts the position with the condition that he shall
surrender the office when called upon to do so by the
appointing authority. Under Section 27 (2), Chapter 5,
Subtitle A, Title I, Book V of the same Code, the term of a
temporary appointment shall be 12 months, unless sooner
terminated by the appointing authority. Such pre-
termination of a temporary appointment may be with or
without cause as the appointee serves merely at the
pleasure of the appointing power.6

Under the Revised Qualifications Standards prescribed by

the CSC, career executive service eligibility is a necessary
qualification for the position of director III in Plans and Policy
Services, OMA. It is not disputed that on September 25,
2000, when respondent was extended an appointment, he
was not eligible to the position, not being a holder of such
eligibility. Hence, his appointment was properly designated
as "temporary." Then on October 31, 2000, newly-appointed
OMA Executive Director Tomawis recalled respondent’s
temporary appointment and replaced him by appointing
Alongan Sani. It turned out, however, that Sani is not
likewise qualified for the post. A game of musical chairs then
followed. Sani was subsequently replaced by Tapa Umal,
who in turn, was succeeded by Camad Edres, and later, was
replaced by Ismael Amod. All these appointees were also
disqualified for lack of the required eligibility.

The Court of Appeals ruled that such replacements are not

valid as the persons who replaced respondent are not also
eligible. Also, since he was replaced without just cause, he is
entitled to serve the remaining term of his 12-month term
with salaries.

This Court has ruled that where a non-eligible holds a

temporary appointment, his replacement by another non-
eligible is not prohibited.7

Moreover, in Achacoso8 cited earlier, this Court held that

when a temporary appointee is required to relinquish his
office, he is being separated precisely because his term has
expired. Thus, reinstatement will not lie in favor of
respondent. Starkly put, with the expiration of his term upon
his replacement, there is no longer any remaining term to be
served. Consequently, he can no longer be reinstated.

As to whether respondent is entitled to back salaries, it is not

disputed that he was paid his salary during the entire twelve-
month period in spite of the fact that he served only from
September 25, 2000 to October 31, 2000, or for only one
month and six days. Clearly, he was overpaid.

WHEREFORE, this Court GRANTS the petition

and REVERSES the assailed Resolutions of the Court of
Appeals. Considering that respondent’s employment was
validly terminated on October 31, 2000, he is ordered to
refund the salaries he received from that date up to
September 24, 2001.

No costs. SO ORDERED.
 APPOINTMENT FINALS 22
G.R. No. 164185 July 23, 2008
PEOPLE OF THE PHILIPPINES, Petitioner,
vs. THE SANDIGANBAYAN (FOURTH DIVISION) and
ALEJANDRO A. VILLAPANDO, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the
Ombudsman through the Office of the Special Prosecutor
assails the May 20, 2004 Decision1 of the Sandiganbayan,
Fourth Division, in Criminal Case No. 27465, granting private
respondent Alejandro A. Villapando’s Demurrer to
Evidence2 and acquitting him of the crime of unlawful
appointment under Article 2443 of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for
Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape
(now deceased), a relative of Villapando’s wife, ran for
Municipal Mayor of Kitcharao, Agusan del Norte. Villapando
won while Tiape lost. Thereafter, on July 1, 1998, Villapando
designated Tiape as Municipal Administrator of the
Municipality of San Vicente, Palawan.4 A Contract of
Consultancy5 dated February 8, 1999 was executed
between the Municipality of San Vicente, Palawan and Tiape
whereby the former employed the services of Tiape as
Municipal Administrative and Development Planning
Consultant in the Office of the Municipal Mayor for a period
of six months from January 1, 1999 to June 30, 1999 for a
monthly salary of ₱26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M.
Fernandez charged Villapando and Tiape for violation of
Article 244 of the Revised Penal Code before the Office of
the Deputy Ombudsman for Luzon.6 The complaint was
resolved against Villapando and Tiape and the following
Information7 dated March 19, 2002 charging the two with
violation of Article 244 of the Revised Penal Code was filed
with the Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or
subsequent thereto, in San Vicente, Palawan, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, ALEJANDRO A. VILLAPANDO, a public
officer, being then the Municipal Mayor of San Vicente,
Palawan, committing the crime herein charged, in relation
to and taking advantage of his official functions, conspiring
and confederating with accused Orlando M. Tiape, did then
and there wilfully, unlawfully and feloniously appoint
ORLANDO M. TIAPE as a Municipal Administrator of San
Vicente, Palawan, accused Alejandro A. Villapando knowing
fully well that Orlando Tiape lacks the qualification as he is a
losing mayoralty candidate in the Municipality of Kitcharao,
Agusan del Norte during the May 1998 elections, hence is
ineligible for appointment to a public office within one year
(1) from the date of the elections, to the damage and
prejudice of the government and of public interest.
CONTRARY TO LAW.8
The Information was docketed as Criminal Case No. 27465
and raffled to the Fourth Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando
pleaded not guilty. Meanwhile, the case against Tiape was
dismissed after the prosecution proved his death which
occurred on July 26, 2000.9
After the prosecution rested its case, Villapando moved for
leave to file a demurrer to evidence. The Sandiganbayan,
Fourth Division denied his motion but gave him five days
within which to inform the court in writing whether he will
nonetheless submit his Demurrer to Evidence for resolution
without leave of court.10 Villapando then filed a
Manifestation of Intent to File Demurrer to Evidence,11 and
was given 15 days from receipt to file his Demurrer to
Evidence. He filed his Demurrer to Evidence12 on October
28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan,
Fourth Division found Villapando’s Demurrer to Evidence
meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed with
merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.–Any public officer who
shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefor, shall suffer
the penalty of arresto mayor and a fine not exceeding 1,000
pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the
following elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public
office;
3. such person did not have the legal qualifications
[therefor;] and,
4. the offender knew that his nominee or appointee did not
have the legal qualifications at the time he made the
nomination or appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor
of San Vicente, Palawan when the alleged crime was
committed.
2. Accused appointed Orlando Tiape as Municipal
Administrator of the Municipality of San Vicente, Palawan.
 APPOINTMENT FINALS 23
3. There appears to be a dispute. This Court is now called
upon to determine whether Orlando Tiape, at the time of
[his] designation as Municipal Administrator, was lacking in
legal qualification. Stated differently, does "legal
qualification" contemplate the one (1) year prohibition on
appointment as provided for in Sec. 6, Art. IX-B of the
Constitution and Sec. 94 (b) of the Local Government Code,
mandating that a candidate who lost in any election shall
not, within one year after such election, be appointed to any
office in the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular
appointee to a public office, "there must be a law providing
for the qualifications of a person to be nominated or
appointed" therein. To illuminate further, Justice Rodolfo
Palattao succinctly discussed in his book that the
qualification of a public officer to hold a particular position
in the government is provided for by law, which may refer to
educational attainment, civil service eligibility or experience:
As the title suggests, the offender in this article is a public
officer who nominates or appoints a person to a public
office. The person nominated or appointed is not qualified
and his lack of qualification is known to the party making the
nomination or appointment. The qualification of a public
officer to hold a particular position in the government is
provided by law. The purpose of the law is to ensure that the
person appointed is competent to perform the duties of the
office, thereby promoting efficiency in rendering public
service.
The qualification to hold public office may refer to
educational attainment, civil service eligibility or
experience. For instance, for one to be appointed as judge,
he must be a lawyer. So if the Judicial and Bar Council
nominates a person for appointment as judge knowing him
to be not a member of the Philippine Bar, such act
constitutes a violation of the law under consideration.
In this case, Orlando Tiape was allegedly appointed to the
position of Municipal Administrator. As such, the law that
provides for the legal qualification for the position of
municipal administrator is Section 480, Article X of the Local
Government Code, to wit:
"Section 480. Qualifications, Terms, Powers and Duties.–(a)
No person shall be appointed administrator unless he is a
citizen of the Philippines, a resident of the local government
unit concerned, of good moral character, a holder of a
college degree preferably in public administration, law, or
any other related course from a recognized college or
university, and a first grade civil service eligible or its
equivalent. He must have acquired experience in
management and administration work for at least five (5)
years in the case of the provincial or city administrator, and
three (3) years in the case of the municipal administrator.
xxx xxx x x x"
It is noteworthy to mention that the prosecution did not
allege much less prove that Mayor Villapando’s appointee,
Orlando Tiape, lacked any of the qualifications imposed by
law on the position of Municipal Administrator.
Prosecution’s argument rested on the assertion that since
Tiape lost in the May 11, 1998 election, he necessarily lacked
the required legal qualifications.
It bears stressing that temporary prohibition is not
synonymous with absence or lack of legal qualification. A
person who possessed the required legal qualifications for a
position may be temporarily disqualified for appointment to
a public position by reason of the one year prohibition
imposed on losing candidates. Upon the other hand, one
may not be temporarily disqualified for appointment, but
could not be appointed as he lacked any or all of the
required legal qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary
to discuss the same.
WHEREFORE, finding the "Demurrer to Evidence" filed by
Mayor Villapando with merit, the same is hereby GRANTED.
Mayor Villapando is hereby ACQUITTED of the crime
charged.
SO ORDERED.13
Thus, this petition by the Office of the Ombudsman, through
the Office of the Special Prosecutor, representing the People
of the Philippines.
Villapando was required by this Court to file his comment to
the petition. Despite several notices, however, he failed to
do so and in a Resolution14 dated June 7, 2006, this Court
informed him that he is deemed to have waived the filing of
his comment and the case shall be resolved on the basis of
the pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS
OF JURISDICTION IN INTERPRETING THAT THE "LEGAL
DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED PENAL
CODE DOES NOT INCLUDE THE ONE YEAR PROHIBITION
IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE
CONSTITUTION AND THE LOCAL GOVERNMENT CODE.
II.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS
OF JURISDICTION IN GIVING DUE COURSE TO, AND
EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.15
Simply, the issue is whether or not the Sandiganbayan,
Fourth Division, acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
 APPOINTMENT FINALS 24
Petitioner argues that the Sandiganbayan, Fourth Division
acted with grave abuse of discretion amounting to lack or
excess of jurisdiction because its interpretation of Article
244 of the Revised Penal Code does not complement the
provision on the one-year prohibition found in the 1987
Constitution and the Local Government Code, particularly
Section 6, Article IX of the 1987 Constitution which states no
candidate who has lost in any election shall, within one year
after such election, be appointed to any office in the
government or any government-owned or controlled
corporation or in any of their subsidiaries. Section 94(b) of
the Local Government Code of 1991, for its part, states that
except for losing candidates in barangay elections, no
candidate who lost in any election shall, within one year
after such election, be appointed to any office in the
government or any government-owned or controlled
corporation or in any of their subsidiaries. Petitioner argues
that the court erred when it ruled that temporary
prohibition is not synonymous with the absence of lack of
legal qualification.
The Sandiganbayan, Fourth Division held that the
qualifications for a position are provided by law and that it
may well be that one who possesses the required legal
qualification for a position may be temporarily disqualified
for appointment to a public position by reason of the one-
year prohibition imposed on losing candidates. However,
there is no violation of Article 244 of the Revised Penal Code
should a person suffering from temporary disqualification
be appointed so long as the appointee possesses all the
qualifications stated in the law.
There is no basis in law or jurisprudence for this
interpretation. On the contrary, legal disqualification in
Article 244 of the Revised Penal Code simply means
disqualification under the law. Clearly, Section 6, Article IX of
the 1987 Constitution and Section 94(b) of the Local
Government Code of 1991 prohibits losing candidates within
one year after such election to be appointed to any office in
the government or any government-owned or controlled
corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. — Any public officer who
shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefore, shall suffer
the penalty of arresto mayor and a fine not exceeding 1,000
pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local
Officials; Candidates Who Lost in Election. - (a) No elective
or appointive local official shall be eligible for appointment
or designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary functions
of his position, no elective or appointive local official shall
hold any other office or employment in the government or
any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
(b) Except for losing candidates in barangay elections, no
candidate who lost in any election shall, within one (1) year
after such election, be appointed to any office in the
government or any government-owned or controlled
corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall,
within one year after such election, be appointed to any
office in the Government or any Government-owned or
controlled corporations or in any of their subsidiaries.
Villapando’s contention and the Sandiganbayan, Fourth
Division’s interpretation of the term legal disqualification
lack cogency. Article 244 of the Revised Penal Code cannot
be circumscribed lexically. Legal disqualification cannot be
read as excluding temporary disqualification in order to
exempt therefrom the legal prohibitions under Section 6,
Article IX of the 1987 Constitution and Section 94(b) of the
Local Government Code of 1991.
Although this Court held in the case of People v.
Sandiganbayan16 that once a court grants the demurrer to
evidence, such order amounts to an acquittal and any
further prosecution of the accused would violate the
constitutional proscription on double jeopardy, this Court
held in the same case that such ruling on the matter shall
not be disturbed in the absence of a grave abuse of
discretion.1avvphi1
Grave abuse of discretion defies exact definition, but it
generally refers to capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse
of discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility.17
In this case, the Sandiganbayan, Fourth Division, in
disregarding basic rules of statutory construction, acted with
grave abuse of discretion. Its interpretation of the term legal
disqualification in Article 244 of the Revised Penal Code
defies legal cogency. Legal disqualification cannot be read as
excluding temporary disqualification in order to exempt
therefrom the legal prohibitions under the 1987
Constitution and the Local Government Code of 1991. We
reiterate the legal maxim ubi lex non distinguit nec nos
distinguere debemus. Basic is the rule in statutory
construction that where the law does not distinguish, the
courts should not distinguish. There should be no distinction
in the application of a law where none is indicated.
 APPOINTMENT FINALS 25

Further, the Sandiganbayan, Fourth Division denied

Villapando’s Motion for Leave to File Demurrer to Evidence
yet accommodated Villapando by giving him five days within
which to inform it in writing whether he will submit his
demurrer to evidence for resolution without leave of court.

Notably, a judgment rendered with grave abuse of

discretion or without due process is void, does not exist in
legal contemplation and, thus, cannot be the source of an
acquittal.18

The Sandiganbayan, Fourth Division having acted with grave

abuse of discretion in disregarding the basic rules of
statutory construction resulting in its decision granting
Villapando’s Demurrer to Evidence and acquitting the latter,
we can do no less but declare its decision null and void.

WHEREFORE, the petition is GRANTED. The Decision dated

May 20, 2004 of the Sandiganbayan, Fourth Division, in
Criminal Case No. 27465, granting private respondent
Alejandro A. Villapando’s Demurrer to Evidence and
acquitting him of the crime of unlawful appointment under
Article 244 of the Revised Penal Code is hereby
declared NULL and VOID. Let the records of this case be
remanded to the Sandiganbayan, Fourth Division, for further
proceedings.

SO ORDERED.
 APPOINTMENT FINALS 26
G.R. No. 180917 April 23, 2010
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA
ARAÑA, Petitioners, vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON
VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES
FABIAN, Respondents,
DECISION
CARPIO MORALES, J.:
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda
Araña (Glenda) challenge the October 11, 2007 Decision and
the December 13, 2007 Resolution of the Court of
Appeals1 in CA-G.R. SP No. 96889 affirming the Office of the
Ombudsman's decision finding them guilty of Simple Neglect
of Duty.
Salumbides and Glenda were appointed in July 2001 as
Municipal Legal Officer/Administrator and Municipal Budget
Officer, respectively, of Tagkawayan, Quezon.
Towards the end of 2001, Mayor Vicente Salumbides III (the
mayor) saw the urgent need to construct a two-classroom
building with fence (the projects) for the Tagkawayan
Municipal High School2 (TMHS) since the public school in the
poblacion area would no longer admit high school freshmen
starting school year 2002-2003. On how to solve the
classroom shortage, the mayor consulted Salumbides who
suggested that the construction of the two-classroom
building be charged to the account of the Maintenance and
Other Operating Expenses/ Repair and Maintenance of
Facilities (MOOE/RMF) and implemented "by
administration," as had been done in a previous classroom
building project of the former mayor.
Upon consultation, Glenda advised Salumbides in December
2001, that there were no more available funds that could be
taken from the MOOE/RMF, but the savings of the municipal
government were adequate to fund the projects. She added,
however, that the approval by the Sangguniang Bayan of a
proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having already
gone on recess for the Christmas holidays, Glenda and
Salumbides advised the mayor to source the funds from the
₱1,000,000 MOOE/RMF allocation in the approved
Municipal Annual Budget for 2002.3
The mayor thus ordered on January 8, 2002 Municipal
Engineer Jose Aquino (Aquino) to proceed with the
construction of the projects based on the program of work
and bill of materials he (Aquino) prepared with a total cost
estimate of ₱222,000.
Upon advice of Municipal Planning and Development Officer
Hernan Jason (Jason), the mayor included the projects in the
list of local government projects scheduled for bidding on
January 25, 2002 which, together with the January 31, 2002
public bidding, failed.
The mayor was to admit later his expectation or assumption
of risk on reimbursement:
x x x It was my thinking that even if a bidder emerges and
gets these 2 projects which were at the time on-going
(although it was also my thinking then that no bidder would
possibly bid for these 2 projects as these were cost-
estimated very low-P150,000 for the 2-room school building
P72,000 for the fencing) he (bidder) would be reasonable
enough to reimburse what I had so far spen[t] for the
project. I said "I" because up to the time of the failed 2
biddings I have shouldered the "vale" of the laborers and I
requisitioned some materials on credit on my own personal
account, and not a single centavo was at the time disbursed
by our municipal treasury until all requirements for
negotiated purchase of the materials for the project had
been accomplished. As a matter of fact, payments for the
expenses on these 2 projects have been made only starting
19 March 2002. x x x4 (underscoring supplied)
The construction of the projects commenced without any
approved appropriation and ahead of the public bidding.
Salumbides was of the opinion that the projects were
regular and legal, based on an earlier project that was
"implemented in the same manner, using the same source
of fund and for the same reason of urgency" which was
allowed "because the building was considered merely
temporary as the TMHS is set to be transferred to an 8-
hectare lot which the municipal government is presently
negotiating to buy."5
Meanwhile, Aquino suggested to the Sangguniang
Bayan the adoption of "model guidelines" in the
implementation of infrastructure projects to be executed
"by administration," while Councilor Coleta Sandro (Coleta)
sponsored a Resolution to ratify the projects and to
authorize the mayor to enter into a negotiated
procurement. Both actions did not merit the approval of
the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon, Ramon
Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all
members of the Sangguniang Bayan of Tagkawayan, filed
with the Office of the Ombudsman a complaint6 against
Salumbides and Glenda (hereafter petitioners), the mayor,
Coleta, Jason and Aquino.
The administrative aspect of the case, docketed as Case No.
OMB-L-A-02-0276-E, charged petitioners et al. with
Dishonesty, Grave Misconduct, Gross Neglect of Duty,
Conduct Prejudicial to the Best Interest of the Service, and
violation of the Commission on Audit (COA) Rules and the
Local Government Code.
By Order of June 14, 2002, the Office of the Ombudsman,
denied the prayer to place petitioners et al. under
preventive suspension pending investigation. By Order
dated February 1, 2005, approved on April 11, 2005, it
denied the motion for reconsideration but dropped the
 APPOINTMENT FINALS 27
mayor and Coleta, both elective officials, as respondents in
the administrative case, the 2004 elections having mooted
the case. The parties were thereupon directed to submit
their respective verified position papers to which
petitioners, Jason and Aquino complied by submitting a
consolidated position paper on May 19, 2005.
Meanwhile, in response to the subpoena duces
tecum issued by the Office of the Ombudsman on February
18, 2005 requiring the regional officer of the COA to submit
the post-audit report on the projects, Celerino Alviar, COA
State Auditor II claimed by Affidavit of May 23, 2005 that the
required documents were among those razed by fire on
April 14, 2004 that hit the Office of the Municipal
Accountant where they were temporarily stored due to lack
of space at the Provincial Auditor's Office.1avvphi1
On October 17, 2005, the Office of the Ombudsman
approved the September 9, 2005 Memorandum absolving
Jason and Aquino, and finding petitioners guilty of Simple
Neglect of Duty, for which they were meted the penalty of
suspension from office for a maximum period of six months
with a stern warning against a similar repetition. It also
approved on November 2, 2006 the March 27, 2006
Order7 denying the motion for reconsideration.
Their recourse to the appellate court having failed,
petitioners come before this Court via Rule 45 of the Rules
of Court.
For non-compliance with the rule on certification against
forum shopping, the petition merits outright dismissal. The
verification portion of the petition does not carry a
certification against forum shopping.8
The Court has distinguished the effects of non-compliance
with the requirement of verification and that of certification
against forum shopping. A defective verification shall be
treated as an unsigned pleading and thus produces no legal
effect, subject to the discretion of the court to allow the
deficiency to be remedied, while the failure to certify against
forum shopping shall be cause for dismissal without
prejudice, unless otherwise provided, and is not curable by
amendment of the initiatory pleading.9
Petitioners' disregard of the rules was not the first. Their
motion for extension of time to file petition was previously
denied by Resolution of January 15, 200810 for non-
compliance with the required showing of competent proof
of identity in the Affidavit of Service. The Court, by
Resolution of March 4, 2008,11 later granted their motion for
reconsideration with motion to admit appeal (Motion with
Appeal) that was filed on February 18, 2008 or the last day
of filing within the extended period.
Moreover, in their Manifestation/Motion12 filed a day later,
petitioners prayed only for the admission of
nine additional copies of the Motion with Appeal "due to
honest inadvertence" in earlier filing an insufficient number
of copies. Petitioners were less than candid when they
surreptitiously submitted a Motion with Appeal which
is differentfrom the first set they had submitted. The second
set of Appeal includes specific Assignment of Errors13 and
already contains a certification against forum
shopping14 embedded in the Verification. The two different
Verifications were notarized by the same notary public and
bear the same date and document number.15 The rectified
verification with certification, however, was filed beyond the
reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of
condonation16 to cover coterminous appointive officials
who were administratively charged along with the reelected
official/appointing authority with infractions allegedly
committed during their preceding term.
The Court rejects petitioners' thesis.
More than 60 years ago, the Court in Pascual v. Hon.
Provincial Board of Nueva Ecija17 issued the landmark ruling
that prohibits the disciplining of an elective official for a
wrongful act committed during his immediately preceding
term of office. The Court explained that "[t]he underlying
theory is that each term is separate from other terms, and
that the reelection to office operates as a condonation of
the officer's previous misconduct to the extent of cutting off
the right to remove him therefor."18
The Court should never remove a public officer for acts done
prior to his present term of office. To do otherwise would be
to deprive the people of their right to elect their
officers. When the people elect[e]d a man to office, it must
be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the
court, by reason of such faults or misconduct[,] to practically
overrule the will of the people.19 (underscoring supplied)
Lizares v. Hechanova, et al.20 replicated the doctrine. The
Court dismissed the petition in that case for being moot, the
therein petitioner "having been duly reelected, is no longer
amenable to administrative sanctions."21
Ingco v. Sanchez, et al.22 clarified that the condonation
doctrine does not apply to a criminal case.23 Luciano v. The
Provincial Governor, et al.,24 Olivarez v. Judge
Villaluz,25 and Aguinaldo v. Santos26 echoed the qualified
rule that reelection of a public official does not bar
prosecution for crimes committed by him prior thereto.
Consistently, the Court has reiterated the doctrine in a string
of recent jurisprudence including two cases involving a
Senator and a Member of the House of Representatives.27
Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon.
Mojica29 reinforced the doctrine. The condonation rule was
applied even if the administrative complaint was not filed
before the reelection of the public official, and even if the
alleged misconduct occurred four days before the elections,
 APPOINTMENT FINALS 28
respectively. Salalima did not distinguish as to the date of
filing of the administrative complaint, as long as the alleged
misconduct was committed during the prior term, the
precise timing or period of which Garcia did not further
distinguish, as long as the wrongdoing that gave rise to the
public official's culpability was committed prior to the date
of reelection.
Petitioners' theory is not novel.
A parallel question was involved in Civil Service Commission
v. Sojor30 where the Court found no basis to broaden the
scope of the doctrine of condonation:
Lastly, We do not agree with respondent's contention that
his appointment to the position of president of NORSU,
despite the pending administrative cases against him,
served as a condonation by the BOR of the alleged acts
imputed to him. The doctrine this Court laid down in
Salalima v. Guingona, Jr. and Aguinaldo v. Santos are
inapplicable to the present circumstances. Respondents in
the mentioned cases are elective officials, unlike respondent
here who is an appointed official. Indeed, election expresses
the sovereign will of the people. Under the principle of vox
populi est suprema lex, the re-election of a public official
may, indeed, supersede a pending administrative case. The
same cannot be said of a re-appointment to a non-career
position. There is no sovereign will of the people to speak
of when the BOR re-appointed respondent Sojor to the post
of university president.31 (emphasis and underscoring
supplied)lawph!l
Contrary to petitioners' asseveration, the non-application of
the condonation doctrine to appointive officials does not
violate the right to equal protection of the law.
In the recent case of Quinto v. Commission on
Elections,32 the Court applied the four-fold test in an equal
protection challenge33 against the resign-to-run provision,
wherein it discussed the material and substantive
distinctions between elective and appointive officials that
could well apply to the doctrine of condonation:
The equal protection of the law clause is against undue favor
and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in the
object to which it is directed or by territory within which it is
to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies
only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who
fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials
and appointive officials. The former occupy their office by
virtue of the mandate of the electorate. They are elected to
an office for a definite term and may be removed therefrom
only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity
and are entitled to security of tenure while others serve at
the pleasure of the appointing authority.
xxxx
An election is the embodiment of the popular will, perhaps
the purest expression of the sovereign power of the people.
It involves the choice or selection of candidates to public
office by popular vote. Considering that elected officials are
put in office by their constituents for a definite term, x x x
complete deference is accorded to the will of the electorate
that they be served by such officials until the end of the term
for which they were elected. In contrast, there is no such
expectation insofar as appointed officials are concerned.
(emphasis and underscoring supplied)
The electorate's condonation of the previous administrative
infractions of the reelected official cannot be extended to
that of the reappointed coterminous employees, the
underlying basis of the rule being to uphold the will of the
people expressed through the ballot. In other words, there
is neither subversion of the sovereign will nor
disenfranchisement of the electorate to speak of, in the case
of reappointed coterminous employees.
It is the will of the populace, not the whim of one person
who happens to be the appointing authority, that could
extinguish an administrative liability. Since petitioners hold
appointive positions, they cannot claim the mandate of the
electorate. The people cannot be charged with the
presumption of full knowledge of the life and character of
each and every probable appointee of the elective official
ahead of the latter's actual reelection.
Moreover, the unwarranted expansion of
the Pascual doctrine would set a dangerous precedent as it
would, as respondents posit, provide civil servants,
particularly local government employees, with blanket
immunity from administrative liability that would spawn and
breed abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore this Court
to sift through the evidence and re-assess the factual
findings. This the Court cannot do, for being improper and
immaterial.
Under Rule 45 of the Rules of Court, only questions of law
may be raised, since the Court is not a trier of facts.34 As a
rule, the Court is not to review evidence on record and
assess the probative weight thereof. In the present case, the
appellate court affirmed the factual findings of the Office of
the Ombudsman, which rendered the factual questions
beyond the province of the Court.
 APPOINTMENT FINALS 29

Moreover, as correctly observed by respondents, the lack of
conspiracy cannot be appreciated in favor of petitioners
who were found guilty of simple neglect of duty, for if they
conspired to act negligently, their infraction becomes
intentional.35 There can hardly be conspiracy to commit
negligence.36
Simple neglect of duty is defined as the failure to give proper
attention to a task expected from an employee resulting
from either carelessness or indifference.37 In the present
case, petitioners fell short of the reasonable diligence
required of them, for failing to exercise due care and
prudence in ascertaining the legal requirements and fiscal
soundness of the projects before stamping their imprimatur
and giving their advice to their superior.
The appellate court correctly ruled that as municipal legal
officer, petitioner Salumbides "failed to uphold the law and
provide a sound legal assistance and support to the mayor
in carrying out the delivery of basic services and provisions
of adequate facilities when he advised [the mayor] to
proceed with the construction of the subject projects
without prior competitive bidding."38 As pointed out by the
Office of the Solicitor General, to absolve Salumbides is
tantamount to allowing with impunity the giving of
erroneous or illegal advice, when by law he is precisely
tasked to advise the mayor on "matters related to upholding
the rule of law."39 Indeed, a legal officer who renders a legal
opinion on a course of action without any legal basis
becomes no different from a lay person who may approve
the same because it appears justified.
one day to six months. Finding no alleged or established
circumstance to warrant the imposition of the maximum
penalty of six months, the Court finds the imposition of
suspension without pay for three months justified.
When a public officer takes an oath of office, he or she binds
himself or herself to faithfully perform the duties of the
office and use reasonable skill and diligence, and to act
primarily for the benefit of the public. Thus, in the discharge
of duties, a public officer is to use that prudence, caution,
and attention which careful persons use in the management
of their affairs.43
Public service requires integrity and discipline. For this
reason, public servants must exhibit at all times the highest
sense of honesty and dedication to duty. By the very nature
of their duties and responsibilities, public officers and
employees must faithfully adhere to hold sacred and render
inviolate the constitutional principle that a public office is a
public trust; and must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty and efficiency.44
WHEREFORE, the assailed Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 96889 are AFFIRMED with
MODIFICATION, in that petitioners, Vicente Salumbides, Jr.
and Glenda Araña, are suspended from office for three (3)
months without pay.
SO ORDERED.

As regards petitioner Glenda, the appellate court held that

the improper use of government funds upon the direction of
the mayor and prior advice by the municipal legal officer did
not relieve her of liability for willingly cooperating rather
than registering her written objection40 as municipal budget
officer.

Aside from the lack of competitive bidding, the appellate

court, pointing to the improper itemization of the expense,
held that the funding for the projects should have been
taken from the "capital outlays" that refer to the
appropriations for the purchase of goods and services, the
benefits of which extend beyond the fiscal year and which
add to the assets of the local government unit. It added that
current operating expenditures like MOOE/RMF refer to
appropriations for the purchase of goods and services for
the conduct of normal local government operations within
the fiscal year.41

In Office of the Ombudsman v. Tongson,42 the Court

reminded the therein respondents, who were guilty of
simple neglect of duty, that government funds must be
disbursed only upon compliance with the requirements
provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense

punishable by suspension without pay for one month and
 APPOINTMENT FINALS 30
G.R. No. 189698 February 22, 2010
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR.,
Petitioners, vs. COMMISSION ON ELECTIONS, respondent
RESOLUTION
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves
to grant the respondent Commission on Elections
(COMELEC) motion for reconsideration, and the movants-
intervenors motions for reconsideration-in-intervention, of
this Courts December 1, 2009 Decision (Decision).[1]
The assailed Decision granted the Petition for Certiorari and
Prohibition filed by Eleazar P. Quinto and Gerino A.
Tolentino, Jr. and declared as unconstitutional the second
proviso in the third paragraph of Section 13 of Republic Act
No. 9369,[2] Section 66 of the Omnibus Election Code[3] and
Section 4(a) of COMELEC Resolution No. 8678,[4]mainly on
the ground that they violate the equal protection clause of
the Constitution and suffer from overbreadth. The assailed
Decision thus paved the way for public appointive officials to
continue discharging the powers, prerogatives and functions
of their office notwithstanding their entry into the political
arena.
In support of their respective motions for reconsideration,
respondent COMELEC and movants-intervenors submit the
following arguments:
(1) The assailed Decision is contrary to, and/or violative of,
the constitutional proscription against the participation of
public appointive officials and members of the military in
partisan political activity;
(2) The assailed provisions do not violate the equal
protection clause when they accord differential treatment
to elective and appointive officials, because such differential
treatment rests on material and substantial distinctions and
is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity
of overbreadth; and
(4) There is a compelling need to reverse the assailed
Decision, as public safety and interest demand such reversal.
We find the foregoing arguments meritorious.
I. Procedural Issues
First, we shall resolve the procedural issues on the
timeliness of the COMELECs motion for reconsideration
which was filed on December 15, 2009, as well as the
propriety of the motions for reconsideration-in-intervention
which were filed after the Court had rendered its December
1, 2009 Decision.
i. Timeliness of COMELECs Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of
Court,[5] in relation to Section 1, Rule 52 of the same
rules,[6] COMELEC had a period of fifteen days from receipt
of notice of the assailed Decision within which to move for
its reconsideration. COMELEC received notice of the
assailed Decision on December 2, 2009, hence, had until
December 17, 2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely
filed. It was filed on December 14, 2009. The corresponding
Affidavit of Service (in substitution of the one originally
submitted on December 14, 2009) was subsequently filed on
December 17, 2009 still within the reglementary period.
ii. Propriety of the Motions for Reconsideration-in-
Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or
in the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody
of the court or of an officer thereof may, with leave of court,
be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay
or prejudice the adjudication of the rights of the original
parties, and whether or not the intervenors rights may be
fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a
motion for intervention shall be entertained when the
following requisites are satisfied: (1) the would-be
intervenor shows that he has a substantial right or interest
in the case; and (2) such right or interest cannot be
adequately pursued and protected in another proceeding.[7]
Upon the other hand, Section 2, Rule 19 of the Rules of Court
provides the time within which a motion for intervention
may be filed, viz.:
SECTION 2. Time to intervene. The motion for
intervention may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-
intervention shall be attached to the motion and served on
the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been
allowed even beyond the period prescribed in the Rule,
when demanded by the higher interest of
justice. Interventions have also been granted to afford
indispensable parties, who have not been impleaded, the
right to be heard even after a decision has been rendered by
the trial court,[8] when the petition for review of the
judgment has already been submitted for decision before
the Supreme Court,[9] and even where the assailed order has
already become final and executory.[10] In Lim
v. Pacquing,[11] the motion for intervention filed by the
Republic of the Philippines was allowed by this Court to
avoid grave injustice and injury and to settle once and for all
the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for
intervention rests on the sound discretion of the
court[12] after consideration of the appropriate
[13]
circumstances. We stress again that Rule 19 of the Rules
 APPOINTMENT FINALS 31
of Court is a rule of procedure whose object is to make the
powers of the court fully and completely available for
justice.[14] Its purpose is not to hinder or delay, but to
facilitate and promote the administration of justice.[15]
We rule that, with the exception of the IBP Cebu City
Chapter, all the movants-intervenors may properly
intervene in the case at bar.
First, the movants-intervenors have each sufficiently
established a substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a
right to challenge the December 1, 2009 Decision, which
nullifies a long established law; as a voter, he has a right to
intervene in a matter that involves the electoral process; and
as a public officer, he has a personal interest in maintaining
the trust and confidence of the public in its system of
government.
On the other hand, former Senator Franklin M. Drilon and
Tom V. Apacible are candidates in the May 2010 elections
running against appointive officials who, in view of the
December 1, 2009 Decision, have not yet resigned from their
posts and are not likely to resign from their posts. They stand
to be directly injured by the assailed Decision, unless it is
reversed.
Moreover, the rights or interests of said movants-
intervenors cannot be adequately pursued and protected in
another proceeding. Clearly, their rights will be foreclosed if
this Courts Decision attains finality and forms part of the
laws of the land.
With regard to the IBP Cebu City Chapter, it anchors its
standing on the assertion that this case involves the
constitutionality of elections laws for this coming 2010
National Elections, and that there is a need for it to be
allowed to intervene xxx so that the voice of its members in
the legal profession would also be heard before this Highest
Tribunal as it resolves issues of transcendental
importance.[16]
Prescinding from our rule and ruling case law, we find that
the IBP-Cebu City Chapter has failed to present a specific and
substantial interest sufficient to clothe it with standing to
intervene in the case at bar. Its invoked interest is, in
character, too indistinguishable to justify its intervention.
We now turn to the substantive issues.
II. Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution
8678, the second proviso in the third paragraph of Section
13 of Republic Act (RA) 9369, and Section 66 of the Omnibus
Election Code, on the following grounds:
(1) They violate the equal protection clause of the
Constitution because of the differential treatment of
persons holding appointive offices and those holding
elective positions;
(2) They are overbroad insofar as they prohibit the
candidacy of all civil servants holding appointive posts: (a)
without distinction as to whether or not they occupy
high/influential positions in the government, and (b) they
limit these civil servants activity regardless of whether they
be partisan or nonpartisan in character, or whether they be
in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to
restrict the fundamental right of these public appointive
officials.
We grant the motions for reconsideration. We now rule that
Section 4(a) of Resolution 8678, Section 66 of the Omnibus
Election Code, and the second proviso in the third paragraph
of Section 13 of RA 9369 are not unconstitutional, and
accordingly reverse our December 1, 2009 Decision.
III. Section 4(a) of COMELEC Resolution 8678 Compliant with
Law
Section 4(a) of COMELEC Resolution 8678 is a faithful
reflection of the present state of the law and jurisprudence
on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA
9369, which reiterates Section 66 of the Omnibus Election
Code, any person holding a public appointive office or
position, including active members of the Armed Forces of
the Philippines, and officers and employees in government-
owned or -controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his certificate
of candidacy.
Incumbent Elected Official. Upon the other hand, pursuant
to Section 14 of RA 9006 or the Fair Election Act,[17] which
repealed Section 67 of the Omnibus Election Code[18] and
rendered ineffective Section 11 of R.A. 8436 insofar as it
considered an elected official as resigned only upon the start
of the campaign period corresponding to the positions for
which they are running,[19] an elected official is not deemed
to have resigned from his office upon the filing of his
certificate of candidacy for the same or any other elected
office or position. In fine, an elected official may run for
another position without forfeiting his seat.
These laws and regulations implement Section 2(4), Article
IX-B of the 1987 Constitution, which prohibits civil service
officers and employees from engaging in any electioneering
or partisan political campaign.
The intention to impose a strict limitation on the
participation of civil service officers and employees in
partisan political campaigns is unmistakable. The exchange
between Commissioner Quesada and Commissioner Foz
during the deliberations of the Constitutional Commission is
instructive:
MS. QUESADA.
xxxx
 APPOINTMENT FINALS 32
Secondly, I would like to address the issue here as provided
in Section 1 (4), line 12, and I quote: "No officer or employee
in the civil service shall engage, directly or indirectly, in any
partisan political activity." This is almost the same provision
as in the 1973 Constitution. However, we in the government
service have actually experienced how this provision has
been violated by the direct or indirect partisan political
activities of many government officials.
So, is the Committee willing to include certain clauses that
would make this provision more strict, and which would
deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law
and the implementing rules on the matter are more than
exhaustive enough to really prevent officers and employees
in the public service from engaging in any form of partisan
political activity. But the problem really lies in
implementation because, if the head of a ministry, and even
the superior officers of offices and agencies of government
will themselves violate the constitutional injunction against
partisan political activity, then no string of words that we
may add to what is now here in this draft will really
implement the constitutional intent against partisan political
activity. x x x[20] (italics supplied)
To emphasize its importance, this constitutional ban on civil
service officers and employees is presently reflected and
implemented by a number of statutes. Section 46(b)(26),
Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title
I, Book V of the Administrative Code of 1987 respectively
provide in relevant part:
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary action:
xxxx
(26) Engaging directly or indirectly in partisan political
activities by one holding a non-political office.
xxxx
Section 55. Political Activity. No officer or employee in the
Civil Service including members of the Armed Forces, shall
engage directly or indirectly in any partisan political activity
or take part in any election except to vote nor shall he use
his official authority or influence to coerce the political
activity of any other person or body. Nothing herein
provided shall be understood to prevent any officer or
employee from expressing his views on current political
problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided,
That public officers and employees holding political offices
may take part in political and electoral activities but it shall
be unlawful for them to solicit contributions from their
subordinates or subject them to any of the acts involving
subordinates prohibited in the Election Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus
Election Code) further makes intervention by civil service
officers and employees in partisan political activities an
election offense, viz.:
SECTION 261. Prohibited Acts. The following shall be guilty of
an election offense:
xxxx
(i) Intervention of public officers and employees. Any officer
or employee in the civil service, except those holding
political offices; any officer, employee, or member of the
Armed Forces of the Philippines, or any police force, special
forces, home defense forces, barangay self-defense units
and all other para-military units that now exist or which may
hereafter be organized who, directly or indirectly,
intervenes in any election campaign or engages in any
partisan political activity, except to vote or to preserve
public order, if he is a peace officer.
The intent of both Congress and the framers of our
Constitution to limit the participation of civil service officers
and employees in partisan political activities is too plain to
be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and
the implementing statutes apply only to civil
servants holding apolitical offices. Stated differently, the
constitutional ban does not cover elected officials,
notwithstanding the fact that [t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies
of theGovernment, including government-owned or
controlled corporations with original charters.[21] This is
because elected public officials, by the very nature of their
office, engage in partisan political activities almost all year
round, even outside of the campaign period.[22] Political
partisanship is the inevitable essence of a political office,
elective positions included.[23]
The prohibition notwithstanding, civil service officers and
employees are allowed to vote, as well as express their views
on political issues, or mention the names of certain
candidates for public office whom they support. This is
crystal clear from the deliberations of the Constitutional
Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed
amendment is on page 2, Section 1, subparagraph 4, lines 13
and 14. On line 13, between the words "any" and "partisan,"
add the phrase ELECTIONEERING AND OTHER; and on line
14, delete the word "activity" and in lieu thereof substitute
the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino
may proceed.
 APPOINTMENT FINALS 33
MS. AQUINO: The draft as presented by the Committee
deleted the phrase "except to vote" which was adopted in
both the 1935 and 1973 Constitutions. The phrase "except
to vote" was not intended as a guarantee to the right to vote
but as a qualification of the general prohibition against
taking part in elections.
Voting is a partisan political activity. Unless it is explicitly
provided for as an exception to this prohibition, it will
amount to disenfranchisement. We know that suffrage,
although plenary, is not an unconditional right. In other
words, the Legislature can always pass a statute which can
withhold from any class the right to vote in an election, if
public interest so required. I would only like to reinstate the
qualification by specifying the prohibited acts so that those
who may want to vote but who are likewise prohibited from
participating in partisan political campaigns or
electioneering may vote.
MR. FOZ: There is really no quarrel over this point, but
please understand that there was no intention on the part of
the Committee to disenfranchise any government official or
employee. The elimination of the last clause of this provision
was precisely intended to protect the members of the civil
service in the sense that they are not being deprived of the
freedom of expression in a political contest. The last phrase
or clause might have given the impression that a government
employee or worker has no right whatsoever in an election
campaign except to vote, which is not the case. They are still
free to express their views although the intention is not really
to allow them to take part actively in a political campaign.[24]
IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code Do Not Violate
the Equal Protection Clause
We now hold that Section 4(a) of Resolution 8678, Section
66 of the Omnibus Election Code, and the second proviso in
the third paragraph of Section 13 of RA 9369 are not
violative of the equal protection clause of the Constitution.
i. Farias, et al. v. Executive Secretary, et al. is controlling
In truth, this Court has already ruled squarely on whether
these deemed-resigned provisions challenged in the case at
bar violate the equal protection clause of the Constitution
in Farias, et al. v. Executive Secretary, et al.[25]
In Farias, the constitutionality of Section 14 of the Fair
Election Act, in relation to Sections 66 and 67 of the
Omnibus Election Code, was assailed on the ground, among
others, that it unduly discriminates against appointive
officials. As Section 14 repealed Section 67 (i.e., the
deemed-resigned provision in respect of elected officials) of
the Omnibus Election Code, elected officials are no longer
considered ipso facto resigned from their respective offices
upon their filing of certificates of candidacy. In contrast,
since Section 66 was not repealed, the limitation on
appointive officials continues to be operative they are
deemed resigned when they file their certificates of
candidacy.
The petitioners in Farias thus brought an equal protection
challenge against Section 14, with the end in view of having
the deemed-resigned provisions apply equally to both
elected and appointive officials. We held, however, that the
legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant
distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair
Election Act, in relation to Sections 66 and 67 of the
Omnibus Election Code, infringed on the equal protection
clause of the Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of
the Omnibus Election Code pertaining to elective officials
gives undue benefit to such officials as against the
appointive ones and violates the equal protection clause of
the constitution, is tenuous.
The equal protection of the law clause in the Constitution is
not absolute, but is subject to reasonable classification. If
the groupings are characterized by substantial distinctions
that make real differences, one class may be treated and
regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in
this manner:
The equal protection of the law clause is against undue favor
and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in the
object to which it is directed or by territory within which it is
to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies
only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who
fall within such class and those who do not.
Substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed
therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity
and are entitled to security of tenure while others serve at
the pleasure of the appointing authority.
Another substantial distinction between the two sets of
officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any partisan
political activity or take (sic) part in any election except to
vote. Under the same provision, elective officials, or officers
 APPOINTMENT FINALS 34
or employees holding political offices, are obviously
expressly allowed to take part in political and electoral
activities.
By repealing Section 67 but retaining Section 66 of the
Omnibus Election Code, the legislators deemed it proper to
treat these two classes of officials differently with respect to
the effect on their tenure in the office of the filing of the
certificates of candidacy for any position other than those
occupied by them. Again, it is not within the power of the
Court to pass upon or look into the wisdom of this
classification.
Since the classification justifying Section 14 of Rep. Act No.
9006, i.e., elected officials vis--vis appointive officials, is
anchored upon material and significant distinctions and all
the persons belonging under the same classification are
similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.[26]
The case at bar is a crass attempt to resurrect a dead issue.
The miracle is that our assailed Decision gave it new life. We
ought to be guided by the doctrine of stare decisis et non
quieta movere. This doctrine, which is really adherence to
precedents, mandates that once a case has been decided
one way, then another case involving exactly the same point
at issue should be decided in the same manner.[27] This
doctrine is one of policy grounded on the necessity for
securing certainty and stability of judicial decisions. As the
renowned jurist Benjamin Cardozo stated in his treatise The
Nature of the Judicial Process:
It will not do to decide the same question one way between
one set of litigants and the opposite way between another.
If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to
decide alternate cases on opposite principles. If a case was
decided against me yesterday when I was a defendant, I shall
look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in
my breast; it would be an infringement, material and moral,
of my rights." Adherence to precedent must then be the rule
rather than the exception if litigants are to have faith in the
even-handed administration of justice in the courts.[28]
Our Farias ruling on the equal protection implications of the
deemed-resigned provisions cannot be minimalized as
mere obiter dictum. It is trite to state that an adjudication on
any point within the issues presented by the case cannot be
considered as obiter dictum.[29] This rule applies to all
pertinent questions that are presented and resolved in the
regular course of the consideration of the case and lead up
to the final conclusion, and to any statement as to the
matter on which the decision is predicated.[30] For that
reason, a point expressly decided does not lose its value as
a precedent because the disposition of the case is, or might
have been, made on some other ground; or even though, by
reason of other points in the case, the result reached might
have been the same if the court had held, on the particular
point, otherwise than it did.[31] As we held in Villanueva, Jr. v.
Court of Appeals, et al.:[32]
A decision which the case could have turned on is not
regarded as obiter dictum merely because, owing to the
disposal of the contention, it was necessary to consider
another question, nor can an additional reason in a decision,
brought forward after the case has been disposed of on one
ground, be regarded as dicta. So, also, where a case presents
two (2) or more points, any one of which is sufficient to
determine the ultimate issue, but the court actually decides
all such points, the case as an authoritative precedent as to
every point decided, and none of such points can be regarded
as having the status of a dictum, and one point should not be
denied authority merely because another point was more
dwelt on and more fully argued and considered, nor does a
decision on one proposition make statements of the court
regarding other propositions dicta.[33] (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Farias ruling on the equal protection challenge stands
on solid ground even if reexamined.
To start with, the equal protection clause does not require
the universal application of the laws to all persons or things
without distinction.[34] What it simply requires is equality
among equals as determined according to a valid
classification.[35] The test developed by jurisprudence here
and yonder is that of reasonableness,[36] which has four
requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[37]
Our assailed Decision readily acknowledged that these
deemed-resigned provisions satisfy the first, third and
fourth requisites of reasonableness. It, however, proffers
the dubious conclusion that the differential treatment of
appointive officials vis--vis elected officials is not germane to
the purpose of the law, because whether one holds an
appointive office or an elective one, the evils sought to be
prevented by the measure remain, viz.:
For example, the Executive Secretary, or any Member of the
Cabinet for that matter, could wield the same influence as
the Vice-President who at the same time is appointed to a
Cabinet post (in the recent past, elected Vice-Presidents
were appointed to take charge of national housing, social
welfare development, interior and local government, and
foreign affairs). With the fact that they both head executive
offices, there is no valid justification to treat them differently
when both file their [Certificates of Candidacy] for the
elections. Under the present state of our law, the Vice-
President, in the example, running this time, let us say, for
President, retains his position during the entire election
period and can still use the resources of his office to support
his campaign.[38]
Sad to state, this conclusion conveniently ignores the long-
standing rule that to remedy an injustice, the Legislature
need not address every manifestation of the evil at once; it
 APPOINTMENT FINALS 35
may proceed one step at a time.[39] In addressing a societal
concern, it must invariably draw lines and make choices,
thereby creating some inequity as to those included or
excluded.[40] Nevertheless, as long as the bounds of
reasonable choice are not exceeded, the courts must defer
to the legislative judgment.[41] We may not strike down a law
merely because the legislative aim would have been more
fully achieved by expanding the class.[42] Stated differently,
the fact that a legislative classification, by itself, is
underinclusive will not render it unconstitutionally arbitrary
or invidious.[43] There is no constitutional requirement that
regulation must reach each and every class to which it might
be applied;[44] that the Legislature must be held rigidly to the
choice of regulating all or none.
Thus, any person who poses an equal protection challenge
must convincingly show that the law creates a classification
that is palpably arbitrary or capricious.[45] He must
refute all possible rational bases for the differing treatment,
whether or not the Legislature cited those bases as reasons
for the enactment,[46] such that the constitutionality of the
law must be sustained even if the reasonableness of the
classification is fairly debatable.[47] In the case at bar, the
petitioners failed and in fact did not even attempt to
discharge this heavy burden. Our assailed Decision was
likewise silent as a sphinx on this point even while we
submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may
find that the statutes distinction is unfair, underinclusive,
unwise, or not the best solution from a public-policy
standpoint; rather, we must find that there is no reasonably
rational reason for the differing treatment.[48]
In the instant case, is there a rational justification for
excluding elected officials from the operation of the deemed
resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps
the purest expression of the sovereign power of the
people.[49] It involves the choice or selection of candidates to
public office by popular vote.[50] Considering that elected
officials are put in office by their constituents for a definite
term, it may justifiably be said that they were excluded from
the ambit of the deemed resigned provisions in utmost
respect for the mandate of the sovereign will. In other
words, complete deference is accorded to the will of the
electorate that they be served by such officials until the end
of the term for which they were elected. In contrast, there
is no such expectation insofar as appointed officials are
concerned.
The dichotomized treatment of appointive and elective
officials is therefore germane to the purposes of the law. For
the law was made not merely to preserve the integrity,
efficiency, and discipline of the public service; the Legislature,
whose wisdom is outside the rubric of judicial scrutiny, also
thought it wise to balance this with the competing, yet
equally compelling, interest of deferring to the sovereign
will.[51] (emphasis in the original)
In fine, the assailed Decision would have us equalize the
playing field by invalidating provisions of law that seek to
restrain the evils from running riot. Under the pretext of
equal protection, it would favor a situation in which the evils
are unconfined and vagrant, existing at the behest of both
appointive and elected officials, over another in which a
significant portion thereof is contained. The absurdity of
that position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice
Nachura, in his dissent, that elected officials (vis--vis
appointive officials) have greater political clout over the
electorate, is indeed a matter worth exploring but not by
this Court. Suffice it to say that the remedy lies with the
Legislature. It is the Legislature that is given the authority,
under our constitutional system, to balance competing
interests and thereafter make policy choices responsive to
the exigencies of the times. It is certainly within the
Legislatures power to make the deemed-resigned provisions
applicable to elected officials, should it later decide that the
evils sought to be prevented are of such frequency and
magnitude as to tilt the balance in favor of expanding the
class. This Court cannot and should not arrogate unto itself
the power to ascertain and impose on the people the best
state of affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal
protection ruling, our assailed Decision adverted to, and
extensively cited, Mancuso v. Taft.[52] This was a decision of
the First Circuit of the United States Court of Appeals
promulgated in March 1973, which struck down as
unconstitutional a similar statutory provision. Pathetically,
our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is inextricably linked with
two fundamental freedoms freedom of expression and
association;
(2) Any legislative classification that significantly burdens
this fundamental right must be subjected to strict equal
protection review; and
(3) While the state has a compelling interest in maintaining
the honesty and impartiality of its public work force, the
deemed-resigned provisions pursue their objective in a far
too heavy-handed manner as to render them
unconstitutional.
It then concluded with the exhortation that since the
Americans, from whom we copied the provision in question,
had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow
suit.
Our assailed Decisions reliance on Mancuso is completely
misplaced. We cannot blink away the fact that the United
States Supreme Court effectively overruled Mancuso three
months after its promulgation by the United States Court of
Appeals. In United States Civil Service Commission, et al. v.
National Association of Letter Carriers AFL-CIO, et
al.[53] and Broadrick, et al. v. State of Oklahoma, et al.,[54] the
 APPOINTMENT FINALS 36
United States Supreme Court was faced with the issue of
whether statutory provisions prohibiting federal[55] and
state[56] employees from taking an active part in political
management or in political
campaigns were unconstitutional as to warrant facial
invalidation. Violation of these provisions results in
dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the
equal protection clause. It held that (i) in regulating the
speech of its employees, the state as employer has interests
that differ significantly from those it possesses in regulating
the speech of the citizenry in general; (ii) the courts must
therefore balance the legitimate interest of employee free
expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees
expression interferes with the maintenance of efficient and
regularly functioning services, the limitation on speech is not
unconstitutional; and (iv) the Legislature is to be given some
flexibility or latitude in ascertaining which positions are to be
covered by any statutory restrictions.[57] Therefore, insofar
as government employees are concerned, the correct
standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit
between the governmental interests and the prohibitions in
question.[58]
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the
country appears to have been that partisan political
activities by federal employees must be limited if the
Government is to operate effectively and fairly, elections are
to play their proper part in representative government, and
employees themselves are to be sufficiently free from
improper influences. The restrictions so far imposed on
federal employees are not aimed at particular parties,
groups, or points of view, but apply equally to all partisan
activities of the type described. They discriminate against no
racial, ethnic, or religious minorities. Nor do they seek to
control political opinions or beliefs, or to interfere with or
influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of
Education,[59] the government has an interest in regulating
the conduct and the speech of its employees that differ(s)
significantly from those it possesses in connection with
regulation of the speech of the citizenry in general. The
problem in any case is to arrive at a balance between the
interests of the (employee), as a citizen, in commenting upon
matters of public concern and the interest of the
(government), as an employer, in promoting the efficiency of
the public services it performs through its employees.
Although Congress is free to strike a different balance than it
has, if it so chooses, we think the balance it has so far struck
is sustainable by the obviously important interests sought to
be served by the limitations on partisan political activities
now contained in the Hatch Act.
It seems fundamental in the first place that employees in the
Executive Branch of the Government, or those working for
any of its agencies, should administer the law in accordance
with the will of Congress, rather than in accordance with
their own or the will of a political party. They are expected to
enforce the law and execute the programs of the
Government without bias or favoritism for or against any
political party or group or the members thereof. A major
thesis of the Hatch Act is that to serve this great end of
Government-the impartial execution of the laws-it is
essential that federal employees, for example, not take
formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run
for office on partisan political tickets. Forbidding activities
like these will reduce the hazards to fair and effective
government.
There is another consideration in this judgment: it is not only
important that the Government and its employees in fact
avoid practicing political justice, but it is also critical that
they appear to the public to be avoiding it, if confidence in
the system of representative Government is not to be eroded
to a disastrous extent.
Another major concern of the restriction against partisan
activities by federal employees was perhaps the immediate
occasion for enactment of the Hatch Act in 1939. That was
the conviction that the rapidly expanding Government work
force should not be employed to build a powerful, invincible,
and perhaps corrupt political machine. The experience of
the 1936 and 1938 campaigns convinced Congress that
these dangers were sufficiently real that substantial barriers
should be raised against the party in power-or the party out
of power, for that matter-using the thousands or hundreds
of thousands of federal employees, paid for at public
expense, to man its political structure and political
campaigns.
A related concern, and this remains as important as any
other, was to further serve the goal that employment and
advancement in the Government service not depend on
political performance, and at the same time to make sure
that Government employees would be free from pressure
and from express or tacit invitation to vote in a certain way
or perform political chores in order to curry favor with their
superiors rather than to act out their own beliefs. It may be
urged that prohibitions against coercion are sufficient
protection; but for many years the joint judgment of the
Executive and Congress has been that to protect the rights
of federal employees with respect to their jobs and their
political acts and beliefs it is not enough merely to forbid one
employee to attempt to influence or coerce another. For
example, at the hearings in 1972 on proposed legislation for
liberalizing the prohibition against political activity, the
Chairman of the Civil Service Commission stated that the
prohibitions against active participation in partisan political
management and partisan political campaigns constitute the
most significant safeguards against coercion . . .. Perhaps
Congress at some time will come to a different view of the
realities of political life and Government service; but that is
its current view of the matter, and we are not now in any
position to dispute it. Nor, in our view, does the Constitution
forbid it.
 APPOINTMENT FINALS 37
Neither the right to associate nor the right to participate in
political activities is absolute in any event.[60] x x x
xxxx
As we see it, our task is not to destroy the Act if we can, but
to construe it, if consistent with the will of Congress, so as to
comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed
statutory provision is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-
handed restrictions on the partisan political conduct of state
employees. Appellants freely concede that such restrictions
serve valid and important state interests, particularly with
respect to attracting greater numbers of qualified people by
insuring their job security, free from the vicissitudes of the
elective process, and by protecting them from political
extortion. Rather, appellants maintain that however
permissible, even commendable, the goals of s 818 may be,
its language is unconstitutionally vague and its prohibitions
too broad in their sweep, failing to distinguish between
conduct that may be proscribed and conduct that must be
permitted. For these and other reasons, appellants assert
that the sixth and seventh paragraphs of s 818 are void in
toto and cannot be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly
vague.[61] We have little doubt that s 818 is similarly not so
vague that men of common intelligence must necessarily
guess at its meaning.[62] Whatever other problems there are
with s 818, it is all but frivolous to suggest that the section
fails to give adequate warning of what activities it proscribes
or fails to set out explicit standards' for those who must
apply it. In the plainest language, it prohibits any state
classified employee from being an officer or member of a
partisan political club or a candidate for any paid public
office. It forbids solicitation of contributions for any political
organization, candidacy or other political purpose and taking
part in the management or affairs of any political party or in
any political campaign. Words inevitably contain germs of
uncertainty and, as with the Hatch Act, there may be
disputes over the meaning of such terms in s 818 as partisan,
or take part in, or affairs of political parties. But what was
said in Letter Carriers, is applicable here: there are
limitations in the English language with respect to being
both specific and manageably brief, and it seems to us that
although the prohibitions may not satisfy those intent on
finding fault at any cost, they are set out in terms that the
ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to
the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is
overbroad and purports to reach protected, as well as
unprotected conduct, and must therefore be struck down
on its face and held to be incapable of any constitutional
application. We do not believe that the overbreadth
doctrine may appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of
standing in the First Amendment area is that any
enforcement of a statute thus placed at issue is totally
forbidden until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat
or deterrence to constitutionally protected expression.
Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the
Court sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least,
that facial over-breadth adjudication is an exception to our
traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from
pure speech toward conduct and that conduct-even if
expressive-falls within the scope of otherwise valid criminal
laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly
worded, may deter protected speech to some unknown
extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a
statute on its face and so prohibiting a State from enforcing
the statute against conduct that is admittedly within its
power to proscribe. To put the matter another way,
particularly where conduct and not merely speech is
involved, we believe that the overbreadth of a statute must
not only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep. It is our view that s
818 is not substantially overbroad and that whatever
overbreadth may exist should be cured through case-by-
case analysis of the fact situations to which its sanctions,
assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad
regulatory acts, s 818 is directed, by its terms, at political
expression which if engaged in by private persons would
plainly be protected by the First and Fourteenth
Amendments. But at the same time, s 818 is not a censorial
statute, directed at particular groups or viewpoints. The
statute, rather, seeks to regulate political activity in an even-
handed and neutral manner. As indicted, such statutes have
in the past been subject to a less exacting overbreadth
scrutiny. Moreover, the fact remains that s 818 regulates a
substantial spectrum of conduct that is as manifestly subject
to state regulation as the public peace or criminal
trespass. This much was established in United Public
Workers v. Mitchell, and has been unhesitatingly reaffirmed
today in Letter Carriers. Under the decision in Letter Carriers,
there is no question that s 818 is valid at least insofar as it
forbids classified employees from: soliciting contributions
for partisan candidates, political parties, or other partisan
political purposes; becoming members of national, state, or
local committees of political parties, or officers or
committee members in partisan political clubs,
 APPOINTMENT FINALS 38
or candidates for any paid public office; taking part in the
management or affairs of any political party's partisan
political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or
taking an active part in partisan political rallies or meetings;
soliciting votes or assisting voters at the polls or helping in a
partisan effort to get voters to the polls; participating in the
distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in
caravans for any political party or partisan political
candidate.
x x x It may be that such restrictions are impermissible and
that s 818 may be susceptible of some other improper
applications. But, as presently construed, we do not believe
that s 818 must be discarded in toto because some persons
arguably protected conduct may or may not be caught or
chilled by the statute. Section 818 is not substantially
overbroad and it not, therefore, unconstitutional on its face.
(italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice
Nachura does not deny the principles enunciated in Letter
Carriers and Broadrick. He would hold, nonetheless, that
these cases cannot be interpreted to mean a reversal
of Mancuso, since they pertain to different types of laws and
were decided based on a different set of facts, viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the
Hatch Acts prohibition against active participation in political
management or political campaigns. The plaintiffs desired to
campaign for candidates for public office, to encourage and
get federal employees to run for state and local offices, to
participate as delegates in party conventions, and to hold
office in a political club.
In Broadrick, the appellants sought the invalidation for being
vague and overbroad a provision in the (sic) Oklahomas
Merit System of Personnel Administration Act restricting the
political activities of the States classified civil servants, in
much the same manner as the Hatch Act proscribed partisan
political activities of federal employees. Prior to the
commencement of the action, the appellants actively
participated in the 1970 reelection campaign of their
superior, and were administratively charged for asking other
Corporation Commission employees to do campaign work or
to give referrals to persons who might help in the campaign,
for soliciting money for the campaign, and for receiving and
distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an
automatic resignation provision. Kenneth Mancuso, a full
time police officer and classified civil service employee of
the City of Cranston, filed as a candidate for nomination as
representative to the Rhode Island General Assembly. The
Mayor of Cranston then began the process of enforcing the
resign-to-run provision of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different
types of laws and were decided based on a different set of
facts, Letter Carriers and Broadrick cannot be interpreted to
mean a reversal of Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain
reading of these cases. Contrary to his claim, Letter Carriers,
Broadrick and Mancuso all concerned the constitutionality of
resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a
candidate for nomination as representative to the Rhode
Island General Assembly. He assailed the constitutionality of
14.09(c) of the City Home Rule Charter, which
prohibits continuing in the classified service of the city after
becoming a candidate for nomination or election to any
public office.
(2) Letter Carriers involved plaintiffs who alleged that the
Civil Service Commission was enforcing, or threatening to
enforce, the Hatch Acts prohibition against active
participation in political management or political
campaigns[63] with respect to certain defined activities in
which they desired to engage. The plaintiffs relevant to this
discussion are:
(a) The National Association of Letter Carriers, which
alleged that its members were desirous of, among others,
running in local elections for offices such as school board
member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not,
file as a candidate for the office of Borough Councilman in
his local community for fear that his participation in a
partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for the
mayor of West Lafayette, Indiana, and that he would do so
except for fear of losing his job by reason of violation of the
Hatch Act.
The Hatch Act defines active participation in political
management or political campaigns by cross-referring to the
rules made by the Civil Service Commission. The rule
pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or
for election to any National, State, county, or municipal
office is not permissible. The prohibition against political
activity extends not merely to formal announcement of
candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or
doing or permitting to be done any act in furtherance of
candidacy. The fact that candidacy, is merely passive is
immaterial; if an employee acquiesces in the efforts of
friends in furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against political
activity. (italics supplied)
Section 9(b) requires the immediate removal of violators
and forbids the use of appropriated funds thereafter to pay
compensation to these persons.[64]
 APPOINTMENT FINALS 39
(3) Broadrick was a class action brought by
certain Oklahoma state employees seeking a declaration of
unconstitutionality of two sub-paragraphs of Section 818 of
Oklahomas Merit System of Personnel Administration Act.
Section 818 (7), the paragraph relevant to this discussion,
states that [n]o employee in the classified service shall be a
candidate for nomination or election to any paid public
office Violation of Section 818 results in dismissal from
employment, possible criminal sanctions and limited state
employment ineligibility.
Consequently, it cannot be denied that Letter
Carriers and Broadrick effectively overruled Mancuso. By no
stretch of the imagination could Mancuso still be held
operative, as Letter Carriers and Broadrick (i) concerned
virtually identical resign-to-run laws, and (ii) were decided
by a superior court, the United States Supreme Court. It was
thus not surprising for the First Circuit Court of Appeals the
same court that decided Mancuso to hold categorically and
emphatically in Magill v. Lynch[65] that Mancuso is no longer
good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran
for city office in 1975. Pawtuckets Little Hatch Act prohibits
city employees from engaging in a broad range of political
activities. Becoming a candidate for any city office is
specifically proscribed,[66] the violation being punished by
removal from office or immediate dismissal. The firemen
brought an action against the city officials on the ground
that that the provision of the city charter was
unconstitutional. However, the court, fully cognizant
of Letter Carriers and Broadrick, took the position
that Mancuso had since lost considerable vitality. It observed
that the view that political candidacy was a fundamental
interest which could be infringed upon only if less restrictive
alternatives were not available, was a position which was no
longer viable, since the Supreme Court (finding that the
governments interest in regulating both the conduct and
speech of its employees differed significantly from its interest
in regulating those of the citizenry in general) had given little
weight to the argument that prohibitions against the coercion
of government employees were a less drastic means to the
same end, deferring to the judgment of Congress, and
applying a balancing test to determine whether limits on
political activity by public employees substantially served
government interests which were important enough to
outweigh the employees First Amendment rights.[67]
It must be noted that the Court of Appeals ruled in this
manner even though the election in Magill was
characterized as nonpartisan, as it was reasonable for the
city to fear, under the circumstances of that case, that
politically active bureaucrats might use their official power
to help political friends and hurt political foes. Ruled the
court:
The question before us is whether Pawtucket's charter
provision, which bars a city employee's candidacy in even a
nonpartisan city election, is constitutional. The issue
compels us to extrapolate two recent Supreme Court
decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt with laws
barring civil servants from partisan political activity. Letter
Carriers reaffirmed United Public Workers v. Mitchell,
upholding the constitutionality of the Hatch Act as to federal
employees. Broadrick sustained Oklahoma's Little Hatch Act
against constitutional attack, limiting its holding
to Oklahoma's construction that the Act barred only activity
in partisan politics. In Mancuso v. Taft, we assumed that
proscriptions of candidacy in nonpartisan elections would
not be constitutional. Letter Carriers and Broadrick compel
new analysis.
xxxx
What we are obligated to do in this case, as the district court
recognized, is to apply the Courts interest balancing
approach to the kind of nonpartisan election revealed in this
record. We believe that the district court found more
residual vigor in our opinion in Mancuso v. Taft than remains
after Letter Carriers. We have particular reference to our
view that political candidacy was a fundamental interest
which could be trenched upon only if less restrictive
alternatives were not available. While this approach may still
be viable for citizens who are not government employees, the
Court in Letter Carriers recognized that the government's
interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating
those of the citizenry in general. Not only was United Public
Workers v. Mitchell "unhesitatingly" reaffirmed, but the
Court gave little weight to the argument that prohibitions
against the coercion of government employees were a less
drastic means to the same end, deferring to the judgment of
the Congress. We cannot be more precise than the Third
Circuit in characterizing the Court's approach as "some sort
of 'balancing' process".[68] It appears that the government
may place limits on campaigning by public employees if the
limits substantially serve government interests that are
"important" enough to outweigh the employees' First
Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question,
the Magill court detailed the major governmental interests
discussed in Letter Carriers and applied them to
the Pawtucketprovision as follows:
In Letter Carriers[,] the first interest identified by the Court
was that of an efficient government, faithful to the Congress
rather than to party. The district court discounted this
interest, reasoning that candidates in a local election would
not likely be committed to a state or national platform. This
observation undoubtedly has substance insofar as allegiance
to broad policy positions is concerned. But a different kind
of possible political intrusion into efficient administration
could be thought to threaten municipal government: not
into broad policy decisions, but into the particulars of
administration favoritism in minute decisions affecting
welfare, tax assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and inspections. Just as
the Court in Letter Carriers identified a second
governmental interest in the avoidance of the appearance
of "political justice" as to policy, so there is an equivalent
interest in avoiding the appearance of political preferment
 APPOINTMENT FINALS 40
in privileges, concessions, and benefits. The appearance (or
reality) of favoritism that the charter's authors evidently
feared is not exorcised by the nonpartisan character of the
formal election process. Where, as here, party support is a
key to successful campaigning, and party rivalry is the norm,
the city might reasonably fear that politically active
bureaucrats would use their official power to help political
friends and hurt political foes. This is not to say that the city's
interest in visibly fair and effective administration
necessarily justifies a blanket prohibition of all employee
campaigning; if parties are not heavily involved in a
campaign, the danger of favoritism is less, for neither friend
nor foe is as easily identified.
A second major governmental interest identified in Letter
Carriers was avoiding the danger of a powerful political
machine. The Court had in mind the large and growing
federal bureaucracy and its partisan potential. The district
court felt this was only a minor threat since parties had no
control over nominations. But in fact candidates sought
party endorsements, and party endorsements proved to be
highly effective both in determining who would emerge
from the primary election and who would be elected in the
final election. Under the prevailing customs, known party
affiliation and support were highly significant factors
in Pawtucket elections. The charter's authors might
reasonably have feared that a politically active public work
force would give the incumbent party, and the incumbent
workers, an unbreakable grasp on the reins of power. In
municipal elections especially, the small size of the
electorate and the limited powers of local government may
inhibit the growth of interest groups powerful enough to
outbalance the weight of a partisan work force. Even when
nonpartisan issues and candidacies are at stake, isolated
government employees may seek to influence voters or
their co-workers improperly; but a more real danger is that
a central party structure will mass the scattered powers of
government workers behind a single party platform or slate.
Occasional misuse of the public trust to pursue private
political ends is tolerable, especially because the political
views of individual employees may balance each other out.
But party discipline eliminates this diversity and tends to
make abuse systematic. Instead of a handful of employees
pressured into advancing their immediate superior's
political ambitions, the entire government work force may
be expected to turn out for many candidates in every
election. In Pawtucket, where parties are a continuing
presence in political campaigns, a carefully orchestrated use
of city employees in support of the incumbent party's
candidates is possible. The danger is scarcely lessened by the
openness of Pawtucket's nominating procedure or the lack
of party labels on its ballots.
The third area of proper governmental interest in Letter
Carriers was ensuring that employees achieve advancement
on their merits and that they be free from both coercion and
the prospect of favor from political activity. The district court
did not address this factor, but looked only to the possibility
of a civil servant using his position to influence voters, and
held this to be no more of a threat than in the most
nonpartisan of elections. But we think that the possibility of
coercion of employees by superiors remains as strong a
factor in municipal elections as it was in Letter Carriers. Once
again, it is the systematic and coordinated exploitation of
public servants for political ends that a legislature is most
likely to see as the primary threat of employees' rights.
Political oppression of public employees will be rare in an
entirely nonpartisan system. Some superiors may be
inclined to ride herd on the politics of their employees even
in a nonpartisan context, but without party officials looking
over their shoulders most supervisors will prefer to let
employees go their own ways.
In short, the government may constitutionally restrict its
employees' participation in nominally nonpartisan elections
if political parties play a large role in the campaigns. In the
absence of substantial party involvement, on the other
hand, the interests identified by the Letter
Carriers Court lose much of their force. While the
employees' First Amendment rights would normally
outbalance these diminished interests, we do not suggest
that they would always do so. Even when parties are absent,
many employee campaigns might be thought to endanger at
least one strong public interest, an interest that looms larger
in the context of municipal elections than it does in the
national elections considered in Letter Carriers. The city
could reasonably fear the prospect of a subordinate running
directly against his superior or running for a position that
confers great power over his superior. An employee of a
federal agency who seeks a Congressional seat poses less of
a direct challenge to the command and discipline of his
agency than a fireman or policeman who runs for mayor or
city council. The possibilities of internal discussion, cliques,
and political bargaining, should an employee gather
substantial political support, are considerable. (citations
omitted)
The court, however, remanded the case to the district court
for further proceedings in respect of the petitioners
overbreadth charge. Noting that invalidating a statute for
being overbroad is not to be taken lightly, much less to be
taken in the dark, the court held:
The governing case is Broadrick, which introduced the
doctrine of "substantial" overbreadth in a closely analogous
case. Under Broadrick, when one who challenges a law has
engaged in constitutionally unprotected conduct (rather
than unprotected speech) and when the challenged law is
aimed at unprotected conduct, "the overbreadth of a
statute must not only be real, but substantial as well, judged
in relation to the statute's plainly legitimate sweep." Two
major uncertainties attend the doctrine: how to distinguish
speech from conduct, and how to define "substantial"
overbreadth. We are spared the first inquiry
by Broadrick itself. The plaintiffs in that case had solicited
support for a candidate, and they were subject to discipline
under a law proscribing a wide range of activities, including
soliciting contributions for political candidates and
becoming a candidate. The Court found that this
combination required a substantial overbreadth approach.
The facts of this case are so similar that we may reach the
 APPOINTMENT FINALS 41
same result without worrying unduly about the sometimes
opaque distinction between speech and conduct.
The second difficulty is not so easily disposed
of. Broadrick found no substantial overbreadth in a statute
restricting partisan campaigning. Pawtucket has gone
further, banning participation in nonpartisan campaigns as
well. Measuring the substantiality of a statute's overbreadth
apparently requires, inter alia, a rough balancing of the
number of valid applications compared to the number of
potentially invalid applications. Some sensitivity to reality is
needed; an invalid application that is far-fetched does not
deserve as much weight as one that is probable. The question
is a matter of degree; it will never be possible to say that a
ratio of one invalid to nine valid applications makes a law
substantially overbroad. Still, an overbreadth challenger has
a duty to provide the court with some idea of the number of
potentially invalid applications the statute permits. Often,
simply reading the statute in the light of common
experience or litigated cases will suggest a number of
probable invalid applications. But this case is different.
Whether the statute is overbroad depends in large part on
the number of elections that are insulated from party rivalry
yet closed to Pawtucket employees. For all the record
shows, every one of the city, state, or federal elections
in Pawtucket is actively contested by political parties.
Certainly the record suggests that parties play a major role
even in campaigns that often are entirely nonpartisan in
other cities. School committee candidates, for example, are
endorsed by the local Democratic committee.
The state of the record does not permit us to find
overbreadth; indeed such a step is not to be taken lightly,
much less to be taken in the dark. On the other hand, the
entire focus below, in the short period before the election
was held, was on the constitutionality of the statute as
applied. Plaintiffs may very well feel that further efforts are
not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a
significant number of offices, the candidacy for which by
municipal employees would not pose the possible threats to
government efficiency and integrity which Letter Carriers, as
we have interpreted it, deems significant. Accordingly, we
remand for consideration of plaintiffs' overbreadth claim.
(italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate
beyond doubt that Mancuso v. Taft, heavily relied upon by
the ponencia, has effectively been overruled.[69] As it is no
longer good law, the ponencias exhortation that [since] the
Americans, from whom we copied the provision in question,
had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow
suit is misplaced and unwarranted.[70]
Accordingly, our assailed Decisions submission that the right
to run for public office is inextricably linked with two
fundamental freedoms those of expression and association
lies on barren ground. American case law has in fact never
recognized a fundamental right to express ones political
views through candidacy,[71] as to invoke a rigorous standard
of review.[72] Bart v. Telford[73] pointedly stated that [t]he
First Amendment does not in terms confer a right to run for
public office, and this court has held that it does not do so
by implication either. Thus, ones interest in seeking
office, by itself, is not entitled to constitutional
protection.[74] Moreover, one cannot bring ones action
under the rubric of freedom of association, absent any
allegation that, by running for an elective position, one is
advancing the political ideas of a particular set of voters.[75]
Prescinding from these premises, it is crystal clear that the
provisions challenged in the case at bar, are not violative of
the equal protection clause. The deemed-resigned
provisions substantially serve governmental interests (i.e., (i)
efficient civil service faithful to the government and the
people rather than to party; (ii) avoidance of the appearance
of political justice as to policy; (iii) avoidance of the danger
of a powerful political machine; and (iv) ensuring that
employees achieve advancement on their merits and that
they be free from both coercion and the prospect of favor
from political activity). These are interests that are
important enough to outweigh the non-fundamental right of
appointive officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura
cites Clements v. Fashing[76] and Morial, et al. v. Judiciary
Commission of the State of Louisiana, et al.[77] to buttress his
dissent. Maintaining that resign-to-run provisions are valid
only when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the
constitutionality of resign-to-run provisions when applied
to specified or particular officials, as distinguished from all
others,[78] under a classification that is germane to the
purposes of the law. These resign-to-run legislations were
not expressed in a general and sweeping provision, and
thus did not violate the test of being germane to the purpose
of the law, the second requisite for a valid classification.
Directed, as they were, to particular officials, they were not
overly encompassing as to be overbroad. (emphasis in the
original)
This reading is a regrettable misrepresentation
of Clements and Morial. The resign-to-run provisions in
these cases were upheld not because they referred to
specified or particular officials (vis--vis a general class); the
questioned provisions were found valid precisely because
the Court deferred to legislative judgment and found that a
regulation is not devoid of a rational predicate simply because
it happens to be incomplete. In fact, the equal protection
challenge in Clements revolved around the claim that the
State of Texas failed to explain why some public officials are
subject to the resign-to-run provisions, while others are not.
Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the
holders of certain offices automatically resign their positions
if they become candidates for any other elected office,
unless the unexpired portion of the current term is one year
or less. The burdens that 65 imposes on candidacy are even
less substantial than those imposed by 19. The two
provisions, of course, serve essentially the same state
 APPOINTMENT FINALS 42
interests. The District Court found 65 deficient, however,
not because of the nature or extent of the provision's
restriction on candidacy, but because of the manner in
which the offices are classified. According to the District
Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain
sufficiently why some elected public officials are subject to
65 and why others are not. As with the case of 19, we
conclude that 65 survives a challenge under the Equal
Protection Clause unless appellees can show that there is no
rational predicate to the classification scheme.
The history behind 65 shows that it may be upheld consistent
with the "one step at a time" approach that this Court has
undertaken with regard to state regulation not subject to
more vigorous scrutiny than that sanctioned by the
traditional principles. Section 65 was enacted in 1954 as a
transitional provision applying only to the 1954 election.
Section 65 extended the terms of those offices enumerated
in the provision from two to four years. The provision also
staggered the terms of other offices so that at least some
county and local offices would be contested at each election.
The automatic resignation proviso to 65 was not added until
1958. In that year, a similar automatic resignation provision
was added in Art. XI, 11, which applies to officeholders in
home rule cities who serve terms longer than two years.
Section 11 allows home rule cities the option of extending
the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a
creature of the State's electoral reforms of 1958. That the
State did not go further in applying the automatic
resignation provision to those officeholders whose terms
were not extended by 11 or 65, absent an invidious purpose,
is not the sort of malfunctioning of the State's lawmaking
process forbidden by the Equal Protection Clause. A
regulation is not devoid of a rational predicate simply
because it happens to be incomplete. The Equal Protection
Clause does not forbid Texas to restrict one elected
officeholder's candidacy for another elected office unless
and until it places similar restrictions on other officeholders.
The provision's language and its history belie any notion that
65 serves the invidious purpose of denying access to the
political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took
the Morial line that there is no blanket approval of
restrictions on the right of public employees to become
candidates for public office out of context. A correct reading
of that line readily shows that the Court only meant to
confine its ruling to the facts of that case, as each equal
protection challenge would necessarily have to involve
weighing governmental interests vis--vis the specific
prohibition assailed. The Court held:
The interests of public employees in free expression and
political association are unquestionably entitled to the
protection of the first and fourteenth amendments. Nothing
in today's decision should be taken to imply that public
employees may be prohibited from expressing their private
views on controversial topics in a manner that does not
interfere with the proper performance of their public duties.
In today's decision, there is no blanket approval of
restrictions on the right of public employees to become
candidates for public office. Nor do we approve any general
restrictions on the political and civil rights of judges in
particular. Our holding is necessarily narrowed by the
methodology employed to reach it. A requirement that a
state judge resign his office prior to becoming a candidate
for non-judicial office bears a reasonably necessary relation
to the achievement of the state's interest in preventing the
actuality or appearance of judicial impropriety. Such a
requirement offends neither the first amendment's
guarantees of free expression and association nor the
fourteenth amendment's guarantee of equal protection of
the laws. (italics supplied)
Indeed, the Morial court even quoted Broadrick and stated
that:
In any event, the legislature must have some leeway in
determining which of its employment positions require
restrictions on partisan political activities and which may be
left unregulated. And a State can hardly be faulted for
attempting to limit the positions upon which such
restrictions are placed. (citations omitted)
V. Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678,
Section 13 of RA 9369, and Section 66 of the Omnibus
Election Code on equal protection ground, our assailed
Decision struck them down for being overbroad in two
respects, viz.:
(1) The assailed provisions limit the candidacy of all civil
servants holding appointive posts without due regard for the
type of position being held by the employee seeking an
elective post and the degree of influence that may be
attendant thereto;[79] and
(2) The assailed provisions limit the candidacy of any and all
civil servants holding appointive positions without due
regard for the type of office being sought, whether it be
partisan or nonpartisan in character, or in the national,
municipal or barangay level.
Again, on second look, we have to revise our assailed
Decision.
i. Limitation on Candidacy Regardless of Incumbent
Appointive Officials Position, Valid
According to the assailed Decision, the challenged provisions
of law are overly broad because they apply indiscriminately
to all civil servants holding appointive posts, without due
regard for the type of position being held by the employee
running for elective office and the degree of influence that
may be attendant thereto.
 APPOINTMENT FINALS 43
Its underlying assumption appears to be that the evils sought
to be prevented are extant only when the incumbent
appointive official running for elective office holds an
influential post.
Such a myopic view obviously fails to consider a different,
yet equally plausible, threat to the government posed by the
partisan potential of a large and growing bureaucracy: the
danger of systematic abuse perpetuated by a powerful
political machine that has amassed the scattered powers of
government workers so as to give itself and its incumbent
workers an unbreakable grasp on the reins of power.[80] As
elucidated in our prior exposition:[81]
Attempts by government employees to wield influence over
others or to make use of their respective positions
(apparently) to promote their own candidacy may seem
tolerable even innocuous particularly when viewed in
isolation from other similar attempts by other government
employees. Yet it would be decidedly foolhardy to discount
the equally (if not more) realistic and dangerous possibility
that such seemingly disjointed attempts, when taken
together, constitute a veiled effort on the part of an
emerging central party structure to advance its own agenda
through a carefully orchestrated use of [appointive and/or
elective] officials coming from various levels of the
bureaucracy.
[T]he avoidance of such a politically active public work force
which could give an emerging political machine an
unbreakable grasp on the reins of power is reason enough
to impose a restriction on the candidacies of all appointive
public officials without further distinction as to the type of
positions being held by such employees or the degree of
influence that may be attendant thereto. (citations omitted)
ii. Limitation on Candidacy regardless of Type of Office
Sought, Valid
The assailed Decision also held that the challenged
provisions of law are overly broad because they are made to
apply indiscriminately to all civil servants holding appointive
offices, without due regard for the type of elective office
being sought, whether it be partisan or nonpartisan in
character, or in the national, municipal or barangaylevel.
This erroneous ruling is premised on the assumption that
the concerns of a truly partisan office and the temptations it
fosters are sufficiently different from those involved in an
office removed from regular party politics [so as] to warrant
distinctive treatment,[82] so that restrictions on candidacy
akin to those imposed by the challenged provisions can
validly apply only to situations in which the elective office
sought is partisan in character. To the extent, therefore, that
such restrictions are said to preclude even candidacies for
nonpartisan elective offices, the challenged restrictions are
to be considered as overbroad.
Again, a careful study of the challenged provisions and
related laws on the matter will show that the alleged
overbreadth is more apparent than real. Our exposition on
this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that
the rules and guidelines set forth therein refer to the filing
of certificates of candidacy and nomination of official
candidates of registered political parties, in connection with
the May 10, 2010 National and Local Elections.[83] Obviously,
these rules and guidelines, including the restriction in
Section 4(a) of Resolution 8678, were issued specifically for
purposes of the May 10, 2010 National and Local Elections,
which, it must be noted, are decidedly partisan in character.
Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying
for partisan elective posts in the May 10, 2010 National and
Local Elections. On this score, the overbreadth challenge
leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and
Section 66 of the Omnibus Election Code, in conjunction
with other related laws on the matter, will confirm that
these provisions are likewise not intended to apply to
elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry
are the elections for barangay offices, since these are the
only elections in this country which
[84]
involve nonpartisan public offices.
In this regard, it is well to note that from as far back as the
enactment of the Omnibus Election Code in 1985, Congress
has intended that these nonpartisan barangay elections be
governed by special rules, including a separate rule on
deemed resignations which is found in Section 39 of the
Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. No person shall be
elected punong barangay or kagawad ng sangguniang
barangay unless he files a sworn certificate of candidacy in
triplicate on any day from the commencement of the
election period but not later than the day before the
beginning of the campaign period in a form to be prescribed
by the Commission. The candidate shall state the barangay
office for which he is a candidate.
xxxx
Any elective or appointive municipal, city, provincial or
national official or employee, or those in the civil or military
service, including those in government-owned or-controlled
corporations, shall be considered automatically resigned
upon the filing of certificate of candidacy for a barangay
office.
Since barangay elections are governed by a separate
deemed resignation rule, under the present state of law,
there would be no occasion to apply the restriction on
candidacy found in Section 66 of the Omnibus Election Code,
and later reiterated in the proviso of Section 13 of RA 9369,
to any election other than a partisan one. For this reason,
the overbreadth challenge raised against Section 66 of the
 APPOINTMENT FINALS 44
Omnibus Election Code and the pertinent proviso in Section
13 of RA 9369 must also fail. [85]
In any event, even if we were to assume, for the sake of
argument, that Section 66 of the Omnibus Election Code and
the corresponding provision in Section 13 of RA 9369 are
general rules that apply also to elections for nonpartisan
public offices, the overbreadth challenge would still be
futile. Again, we explained:
In the first place, the view that Congress is limited to
controlling only partisan behavior has not received judicial
imprimatur, because the general proposition of the relevant
US cases on the matter is simply that the government has an
interest in regulating the conduct and speech of its
employees that differs significantly from those it possesses
in connection with regulation of the speech of the citizenry
in general.[86]
Moreover, in order to have a statute declared as
unconstitutional or void on its face for being overly broad,
particularly where, as in this case, conduct and not pure
speech is involved, the overbreadth must not only be real,
but substantial as well, judged in relation to the statutes
plainly legitimate sweep.[87]
In operational terms, measuring the substantiality of a
statutes overbreadth would entail, among other things, a
rough balancing of the number of valid applications
compared to the number of potentially invalid
applications.[88] In this regard, some sensitivity to reality is
needed; an invalid application that is far-fetched does not
deserve as much weight as one that is probable.[89] The
question is a matter of degree.[90] Thus, assuming for the
sake of argument that the partisan-nonpartisan distinction
is valid and necessary such that a statute which fails to make
this distinction is susceptible to an overbreadth attack, the
overbreadth challenge presently mounted must
demonstrate or provide this Court with some idea of the
number of potentially invalid elections (i.e. the number of
elections that were insulated from party rivalry but were
nevertheless closed to appointive employees) that may in all
probability result from the enforcement of the statute.[91]
The state of the record, however, does not permit us to find
overbreadth. Borrowing from the words of Magill v. Lynch,
indeed, such a step is not to be taken lightly, much less to be
taken in the dark,[92] especially since an overbreadth finding
in this case would effectively prohibit the State from
enforcing an otherwise valid measure against conduct that
is admittedly within its power to proscribe.[93]
This Court would do well to proceed with tiptoe caution,
particularly when it comes to the application of the
overbreadth doctrine in the analysis of statutes that
purportedly attempt to restrict or burden the exercise of the
right to freedom of speech, for such approach is manifestly
strong medicine that must be used sparingly, and only as a
last resort.[94]
In the United States, claims of facial overbreadth have been
entertained only where, in the judgment of the court, the
possibility that protected speech of others may be muted
and perceived grievances left to fester (due to the possible
inhibitory effects of overly broad statutes) outweighs the
possible harm to society in allowing some unprotected
speech or conduct to go unpunished.[95] Facial overbreadth
has likewise not been invoked where a limiting construction
could be placed on the challenged statute, and where there
are readily apparent constructions that would cure, or at
least substantially reduce, the alleged overbreadth of the
statute.[96]
In the case at bar, the probable harm to society in permitting
incumbent appointive officials to remain in office, even as
they actively pursue elective posts, far outweighs the less
likely evil of having arguably protected candidacies blocked
by the possible inhibitory effect of a potentially overly broad
statute.
In this light, the conceivably impermissible applications of
the challenged statutes which are, at best, bold predictions
cannot justify invalidating these statutes in toto and
prohibiting the State from enforcing them against conduct
that is, and has for more than 100 years been,
unquestionably within its power and interest to
proscribe.[97] Instead, the more prudent approach would be
to deal with these conceivably impermissible applications
through case-by-case adjudication rather than through a
total invalidation of the statute itself.[98]
Indeed, the anomalies spawned by our assailed Decision
have taken place. In his Motion for Reconsideration,
intervenor Drilon stated that a number of high-ranking
Cabinet members had already filed their Certificates of
Candidacy without relinquishing their posts.[99] Several
COMELEC election officers had likewise filed their
Certificates of Candidacy in their respective
provinces.[100] Even the Secretary of Justice had filed her
certificate of substitution for representative of the first
district of Quezon province last December 14, 2009[101] even
as her position as Justice Secretary includes supervision over
the City and Provincial Prosecutors,[102] who, in turn, act as
Vice-Chairmen of the respective Boards of
Canvassers.[103] The Judiciary has not been spared, for a
Regional Trial Court Judge in the South has thrown his hat
into the political arena. We cannot allow the tilting of our
electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of
Resolution 8678 and Section 13 of RA 9369, which merely
reiterate Section 66 of the Omnibus Election Code, are not
unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the
respondents and the intervenors Motions for
Reconsideration; REVERSE and SET ASIDE this Courts
December 1, 2009 Decision; DISMISS the Petition; and ISSUE
this Resolution declaring as not UNCONSTITUTIONAL (1)
Section 4(a) of COMELEC Resolution No. 8678, (2) the
second proviso in the third paragraph of Section 13 of
Republic Act No. 9369, and (3) Section 66 of the Omnibus
Election Code. SO ORDERED.