[G.R. No. 130214.
August 9, 1999]
ISMAEL A. MATHAY, JR., petitioner, vs. CIVIL SERVICE
COMMISSION, respondent.
DECISION
DAVIDE, JR., C.J.:
Petitioner Ismael A. Mathay, Jr. (hereafter MATHAY), Mayor of
Quezon City, seeks the nullification of the resolutions of the Civil
Service Commission (CSC) recalling his appointment of Olegario
S. Tabernilla (hereafter TABERNILLA) as Electrical Engineer V in
the city government; and consequently, the reversal of the
Resolutions of the Court of Appeals of (1) 16 July 1997 denying
due course and dismissing the petition for certiorari docketed as
CA-G.R. No. 44431, and (2) 12 August 1997 denying the motion
for reconsideration.
The antecedent facts follow:
On 26 November 1992, the Quezon City Council enacted City
Ordinance No. SP-33, S. 92, creating an Electrical Division under
the Engineering Department with thirty-six new plantilla
positions to complement the staffing requirements. One of
those newly created positions was Electrical Engineer V, which
required a Professional Electrical Engineer to fill it up and which
became the subject of a heated competition by two licensed
professional electrical engineers, TABERNILLA and Jose I.
Enriquez (hereafter ENRIQUEZ). The former was an Engineer II,
and the latter was an Electrical Engineer III of the existing
Electrical Division under the City Fire Department, which was
previously part of the Quezon City Government but which was
later transferred to the Bureau of Fire Protection, Quezon City
Fire Station. Conformably to the long existing city policy of
providing preferential consideration to Quezon City residents in
the filling up of positions in the city office, the Personnel
Selection Board of the city government recommended the
appointment of TABERNILLA, who had in his favor the advantage
of being a Quezon City resident.
On 22 August 1994, MATHAY extended to TABERNILLA a
permanent appointment, which was approved on 15 September
1994 by the CSC Regional Field Office Acting Director II, Ligaya I.
Caya.[1] TABERNILLA thereafter took his oath of office and
assumed the duties of his new position.
ENRIQUEZ disputed the promotional appointment before the
CSC, claiming it was issued in clear violation of CSC MC No. 42, s.
1991, which prescribes a Bachelors Degree in Engineering as the
educational requirement for the service-wide position of
Engineer V. TABERNILLA, a mere Associate Electrical Engineer
and not a holder of a Bachelors Degree, clearly failed to meet the
qualifications of the position and, therefore, could not be validly
appointed thereto.
Requested to comment on the protest, MATHAY maintained that
TABERNILLAs assumption of the position effective 1 October
1994 mooted the protest, adding that his appointee met the
minimum requirements of the position as specified in the City
Ordinance and existing hiring policies.
In its Resolution No. 95-1218 dated 10 January 1995[2] the CSC
recalled and revoked the appointment of TABERNILLA; thus:
After a careful review of the records, the Commission finds the
appointment issued to Tabernilla not in order.
The requirements prescribed by the qualification standard for
the position of Engineer V are as follows:
EDUCATION: Bachelors degree in Engineering relevant to the
job.
EXPERIENCE: 4 years in position/s involving management and
supervision.
The records clearly show that Tabernilla has not obtained any
bachelors degree in engineering. This is even reflected in the
evaluation sheet for the position of Engineer V, which was
submitted by Mayor Mathay. It appears in said evaluation sheet
that Tabernilla is only a graduate of Associate in Electrical
Engineering. Thus, he was not qualified for appointment to the
position of Electrical Engineer V.
WHEREFORE, the approval of the appointment of Olegario S.
Tabernilla as Engineer V dated August 22, 1994, is hereby
recalled and revoked.
Ligaya Caya, Acting Field Officer is hereby directed to explain in
writing within five (5) days from receipt hereof why she
approved Tabernillas appointment under permanent status
although he does not meet the qualification requirements.
MATHAY moved for the reconsideration[3] of the said
Resolution, alleging that the Ordinance which was the law that
created the office unequivocally specified a Professional
Electrical Engineer as its only requirement; hence, the appointee
needed only to comply therewith. While conceding that the
appointment in local government units are subject to civil service
laws, rules and regulations, MATHAY averred that such truism
cannot override the right of the appointing power to choose his
appointee, considering that the power of appointment is
essentially discretionary.[4] MATHAY further argued that
TABERNILLAs title to the office became complete with the
confirmation by the CSC Regional Field Office of TABERNILLAs
appointment and his subsequent taking of the oath of office and
assumption of duties. TABERNILLA then acquired a legal right
which could not be taken away from him either by revocation of
the appointment or by removal except for cause and with
previous notice and hearing.[5] MATHAY then intimated that
TABERNILLA was not notified of the protest, nor was a hearing
conducted thereon.
MATHAY thereafter filed a supplemental motion manifesting
that under Republic Act. No. 184,[6] the educational
requirement for admission to the Electrical Engineering Board
Examinations is only two years of resident collegiate engineering
training. Since TABERNILLA completed the two-year Associate in
Electrical Engineering course and passed the board
examinations, he was qualified for the contested position.
In Resolution 95-1743[7] dated 9 March 1995, the CSC denied
the motion for reconsideration. It elucidated that under Sections
76, 77 and 78 of R.A. No. 7160, otherwise known as the Local
Government Code of 1991, the CSC has the power to determine
the qualification standards for the various positions in the local
government and review whether the appointments meet these
standards. The qualification standards for new offices, which
local governments have the authority to create, must not be
lower than those prescribed by the CSC. Under existing civil
service laws and rules, an appointee to Engineer V must possess
a Bachelors Degree in Engineering. TABERNILLA certainly failed
to qualify for the position. The fact that he met all the
requirements for admission to Electrical Engineering Board
Examination as provided for under R.A. No. 184, and passed the
said examination does not mean compliance with the prescribed
qualification standards.
On 7 September 1995, TABERNILLA filed his own petition praying
for the review of, and second hard look on, Resolutions Nos. 95-
0218 and 95-1743.
On 13 June 1996, the CSC issued Resolution No. 963779[8]
denying the petition, which it treated as a motion for
reconsideration. It ratiocinated that TABERNILLA had no legal
personality to file such a pleading because under MC 38, s. 93,
Part I(3), a [r]equest for reconsideration of action taken by the
CSC Office on appointments shall always be made by the
appointing officer. Besides, the allegations in the said petition
were not meritorious.
On 25 July 1996, MATHAY filed a petition with the CSC praying
for the review and reconsideration of the three adverse
Resolutions thus far issued, and reiterating therein the
arguments adduced in the first motion for reconsideration.
The petition obtained a similar unpropitious fate with the CSCs
denial of the same per Resolution No. 972545[9] dated 14 April
1997 on the grounds that (1) the petition was in the nature of a
second motion for reconsideration, which was not allowed
pursuant to Section 9 of the Uniform Rules of Procedures in the
Conduct of Administrative Investigations, as only one motion for
reconsideration [could] be entertained; and (2) it was filed late.
Undaunted, MATHAY filed before the Court of Appeals on 17
June 1997 a petition for certiorari under Rule 65 of the Revised
Rules of Court contending that the CSC acted without or in
excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing Resolution
Nos. 95-0218, 95-1743, 96-3779, and 97-2545.
The Court of Appeals, however, dismissed the petition in a
Resolution[10] promulgated on 16 July 1997 for being the wrong
remedy and for being time-barred. It ruled that the petition for
certiorari filed nineteen days after receipt of Resolution No. 97-
2545 could not be a substitute for a lost appeal.
In his motion for reconsideration, MATHAY argued that what was
brought to fore in his petition for certiorari was an error of
jurisdiction in that the CSC had no jurisdiction or authority to
revoke or cancel an approved and completed appointment to a
civil service position. Hence, Rule 65 of the Rules of Court, not
Supreme Court Administrative Circular No. I-95, applied.
Unimpressed, the Court of Appeals denied the motion for
reconsideration in a Resolution[11] promulgated on 12 August
1997, adverting to the same reasons relied upon in dismissing
the petition. Furthermore, it held that MATHAY was precluded
from raising the question of jurisdiction, since he failed to submit
the same as an issue in the proceedings before the CSC.
MATHAY now posits in this petition for review on certiorari under
Rule 45 of the 1997 Rules of Civil Procedure that the Court of
Appeals committed gross errors of law in holding that (1) his
petition for certiorari was not the proper remedy and could not
be a substitute for appeal; (2) said petition was time-barred; (3)
the CSC had jurisdiction to recall and revoke a completed
appointment; and (4) petitioner did not raise the question of
jurisdiction in the proceedings before the CSC such that he was
guilty of laches and estoppel.
The CSC, through the Office of the Solicitor General, remains
steadfast in its view that it committed no error of jurisdiction, as
it was merely enforcing its revisory power over a subordinate
when it reversed the erroneous determination by the Regional
Field Office of TABERNILLAs qualification. The CSC now proposes
that the Quezon City ordinance was an ultra vires act,
considering that the same prescribed a qualification standard
lower than that set for the position, and, hence, fell short of the
injunction of Section 78 of R.A. No. 7160 that all matters
pertinent to human resources and development in local
government units should be governed by civil service laws.
The instant petition must fail.
It must be recalled that in its Resolution of 9 March 1995 the CSC
denied petitioners motion for the reconsideration of its
Resolution of 10 January 1995 revoking the appointment of
TABERNILLA. Petitioner received a copy of the former Resolution
on 4 April 1995. At the time, judgments or final orders of the CSC
were unappealable.[12] It was only on 1 June 1995 that Revised
Administrative Circular No. 1-95 took effect. That Circular
provides that judgments or final orders of quasi-judicial
agencies, like the CSC, may be appealed to the Court of Appeals
within fifteen days from notice thereof. Hence, before that date,
judgments or final orders of the CSC were subject only to the
certiorari jurisdiction of this Court.[13] Section 7, Subdivision A,
Article IX of the Constitution provides:
Unless otherwise provided by this Constitution or by law, any
decision, order, or ruling of each Commission may be brought to
the Supreme Court by certiorari by the aggrieved party within
thirty days from receipt of a copy thereof.
The remedy, therefore, of petitioner was to file with this Court a
special civil action for certiorari within thirty days from 4 April
1995. But he failed to do so; thus, the challenged resolutions
became final.
Notwithstanding the finality of the aforementioned resolutions,
TABERNILLA filed on 7 September 1995 a petition before the CSC
for the review of said resolutions. As correctly held by the CSC,
the said petition, which was in fact a motion for reconsideration,
would not prosper because under Part I(3) of Memorandum
Circular No. 38, Series of 1993, only the appointing officer, in this
case MATHAY, can request reconsideration of actions taken by
the CSC on appointments. Besides, the said petition was filed
long after the resolutions sought to be reconsidered became
final.
Nevertheless, even granting for the sake of argument that the
questioned resolutions were not yet final and that MATHAYs
second motion for reconsideration was allowed and seasonably
filed, the petition for certiorari instituted before the Court of
Appeals had to be dismissed just the same. The special civil
action for certiorari under Rule 65 of the Rules of Court will lie
only if there is no appeal or any plain, speedy or adequate
remedy in the ordinary course of law.[14] In this case, after the
denial of MATHAYs second motion for reconsideration, appeal
was available as a remedy. As earlier mentioned, Revised
Administrative Circular No. 1-95, which took effect on 1 June
1995, provides for an appeal to the Court of Appeals from the
judgments, final orders or resolutions of the Civil Service
Commission. And Section 4 thereof mandates that the appeal be
taken within fifteen days from notice of the denial of the motion
for reconsideration duly filed in accordance with the governing
law of the court or agency a quo. Here, MATHAY filed his petition
before the Court of Appeals on 17 June 1997, or nineteen days
after his receipt of the resolution denying his second motion for
reconsideration. As held in cases too numerous to mention, a
special civil action for certiorari cannot be availed of as a
substitute for a lost or lapsed remedy of appeal.[15]
The petitioner asseverates, however, that the said resolutions
were void and were issued in violation of due process; hence,
they could never become final, and they could be attacked
directly or collaterally even after the time of appeal or review has
lapsed. According to him, the CSC had no jurisdiction or authority
to revoke or cancel an appointment to a civil service position
after its Regional Office had approved the same and the
appointee had assumed the new position.

But still, on 25 July 1996, or more than a month after the

We cannot subscribe to petitioners theory. Under Section 12
issuance of the resolution denying TABERNILLAs motion for
(11) of Book V of Executive Order No. 292, otherwise known as
reconsideration, MATHAY filed with the CSC a petition for the
the Administrative Code of 1987, the CSC has the power to [h]ear
review and reconsideration of the three resolutions thus far
and decide administrative cases instituted before it directly or on
issued. This petition was correctly treated by the CSC as a second
appeal, including contested appointments, and review decisions
motion for reconsideration, it having been filed with the same
and actions of its agencies and of the agencies attached to it.
body that issued the assailed resolutions, coupled with the fact
Moreover, Section 20, Rule VI of the Omnibus Rules
that it was a rehash of the arguments raised in the first motion
Implementing Book V of Executive Order No. 292 and Other
for reconsideration. As such, the same could not be considered
Pertinent Civil Service Laws provides that notwithstanding the
because under Section 9 of the Uniform Rules of Procedure in
initial approval of an appointment, the same may be recalled for
the Conduct of Administrative Investigations, which is applicable
[v]iolation of other existing Civil Service laws, rules and
to protests or questions involving the issuance of appointments,
regulations. As held in Debulgado v. Civil Service
only one motion for reconsideration shall be entertained.
Commission,[16] the CSC is empowered to take appropriate
Section 17, Rule VI of the Omnibus Rules Implementing Book V
action on all appointments and other personnel actions and that
of Executive Order No. 292 and Other Pertinent Civil Service
such power includes the authority to recall an appointment
Laws also provides: In all instances, only one petition for
initially approved in disregard of applicable provisions of Civil
reconsideration shall be entertained. Even assuming that a
Service law and regulations.
second motion for reconsideration was allowed by the Rules,
MATHAYs petition would still be met with denial because it was
filed more than a year after his receipt of the resolution denying
his first motion for reconsideration. Accordingly, it cannot be said that the CSC did not have
jurisdiction or gravely abused its discretion in recalling the
appointment of TABERNILLA, which was issued in violation of
existing civil service rules prescribing a Bachelors Degree in
As earlier discussed, the Resolutions of 10 January and 9 March
Engineering as one of the minimum qualifications for the
1995 had already attained finality. This Court, therefore, finds no
questioned position.
necessity to pass upon the timeliness or propriety of the petition
for certiorari filed by MATHAY before the Court of Appeals on 17
June 1997, or after more than two years from the date the said
resolutions became final. Anent petitioners imputation to the CSC of violation of due
process, the same does not hold water. What was lodged before
the Commission was not a disciplinary case wherein petitioner
or TABERNILLA should have been afforded an opportunity to be
heard. As ruled in Debulgado,[17] the CSC, in approving or
disapproving an appointment, only examines the conformity of
the appointment with applicable provisions of law and whether
the appointee possesses the minimum qualifications and none
of the disqualifications. At any rate, petitioner was requested to
comment on the protest; and he did file comment and, later, a
motion for reconsideration of the revocation of the initially
approved appointment.
Finally, petitioner fears that if the CSC resolution recalling the
appointment made by MATHAY is upheld, it would throw out of
job a civil service employee who had rendered more than forty
years of satisfactory service for the Government, all because he
relied on the presumption that the Acting Regional Director
regularly performed her official duty.
Petitioners apprehension is without basis. Section 19, Rule VI of
the Omnibus Rules Implementing Book V of E.O. No. 292, as well
as Sections 43 and 48 of the Uniform Rules of Procedure in the
Conduct of Administrative Investigations, specifically provides
that in case the protest is finally resolved against the protestee,
his appointment shall become ineffective and he shall be
reverted to his former position.
WHEREFORE, the present petition is DISMISSED. The challenged
resolutions of the Civil Service Commission are hereby
AFFIRMED.
SO ORDERED.
[G.R. No. 147392. March 12, 2004]
BENEDICTO ERNESTO R. BITONIO, JR., petitioner, vs.
COMMISSION ON AUDIT and CELSO D. GANGAN, CHAIRMAN OF
THE COMMISSION ON AUDIT, respondents.
DECISION
CALLEJO, SR., J.:
The instant petition filed under Rule 64 of the Revised Rules of
Court seeks the annulment of the Decision[1] of the Commission
on Audit (COA) dated January 30, 2001 denying the petitioners
motion for the reconsideration of the COA Notices of
Disallowance Nos. 98-008-101 (95) and 98-017-101 (97) dated
July 31, 1998 and October 9, 1998, respectively, involving the per
diems the petitioner received from the Philippine Economic Zone
Authority (PEZA). In order to avoid multiplicity of suits, an
Amended Petition[2] dated August 16, 2002 was later filed to
include in the resolution of the instant petition Notice of
Disallowance No. 98-003-101 (96) dated July 31, 1998 which was
belatedly received by the petitioner on August 13, 2002.
The antecedent facts are as follows:
In 1994, petitioner Benedicto Ernesto R. Bitonio, Jr. was
appointed Director IV of the Bureau of Labor Relations in the
Department of Labor and Employment.
In a Letter dated May 11, 1995 addressed to Honorable Rizalino
S. Navarro, then Secretary of the Department of Trade and
Industry, Acting Secretary Jose S. Brilliantes of the Department
of Labor and Employment designated the petitioner to be the
DOLE representative to the Board of Directors of PEZA.[3] Such
designation was in pursuance to Section 11 of Republic Act No.
7916, otherwise known as the Special Economic Zone Act of
1995, which provides:
Section 11. The Philippine Economic Zone Authority (PEZA)
Board. There is hereby created a body corporate to be known as
the Philippine Economic Zone Authority (PEZA)
The Board shall be composed of the Director General as ex officio
chairman with eight (8) members as follows: the Secretaries or
their representatives of the Department of Trade and Industry,
the Department of Finance, the Department of Labor and
Employment, the Department of [the] Interior and Local
Government, the National Economic and Development
Authority, and the Bangko Sentral ng Pilipinas, one (1)
representative from the labor sector, and one (1) representative
from the investor/business sector in the ECOZONE.
Members of the Board shall receive a per diem of not less than
the amount equivalent to the representation and transportation
allowances of the members of the Board and/or as may be
determined by the Department of Budget and Management:
Provided, however, That the per diem collected per month does
not exceed the equivalent of four (4) meetings.
As representative of the Secretary of Labor to the PEZA, the
petitioner was receiving a per diem for every board meeting he
attended during the years 1995 to 1997.
After a post audit of the PEZAs disbursement transactions, the
COA disallowed the payment of per diems to the petitioner and
thus issued the following:
(a) Notice of Disallowance No. 98-008-101 (95) dated July 31,
1998 for the total sum of P24,500 covering the period of July-
December 1995;
(b) Notice of Disallowance No. 98-003-101 (96) also dated July
31, 1998 for a total amount of P100,000 covering the period of
January 1996 to January 1997;[4]
(c) Notice of Disallowance No. 98-017-101 (97) dated October 9,
1998 for the total amount of P210,000 covering the period of
February 1997 to January 1998.
The uniform reason for the disallowance was stated in the
Notices, as follows:
Cabinet members, their deputies and assistants holding other
offices in addition to their primary office and to receive
compensation therefore was declared unconstitutional by the
Supreme Court in the Civil Liberties Union vs. Executive
Secretary. Disallowance is in pursuance to COA Memorandum
No. 97-038 dated September 19, 1997 implementing Senate
Committee Report No. 509.[5]
On November 24, 1998, the petitioner filed his motion for
reconsideration to the COA on the following grounds:
1. The Supreme Court in its Resolution dated August 2, 1991 on
the motion for clarification filed by the Solicitor General modified
its earlier ruling in the Civil Liberties Union case which limits the
prohibition to Cabinet Secretaries, Undersecretaries and their
Assistants. Officials given the rank equivalent to a Secretary,
Undersecretary or Assistant Secretary and other appointive
officials below the rank of Assistant Secretary are not covered by
the prohibition.
2. Section 11 of R.A. No. 7916 provides the legal basis for the
movant to receive per diem. Said law was enacted in 1995, four
years after the Civil Liberties Union case became final. In
expressly authorizing per diems, Congress should be conclusively
presumed to have been aware of the parameters of the
constitutional prohibition as interpreted in the Civil Liberties
Union case.[6]
On January 30, 2001, the COA rendered the assailed decision
denying petitioners motion for reconsideration.
Hence, this petition.
The issue in this case is whether or not the COA correctly
disallowed the per diems received by the petitioner for his
attendance in the PEZA Board of Directors meetings as
representative of the Secretary of Labor.
We rule in the affirmative.
The COA anchors the disallowance of per diems in the case of
Civil Liberties Union v. Executive Secretary[7] where the Court
declared Executive Order No. 284[8] allowing government
officials to hold multiple positions in government,
unconstitutional. Thus, Cabinet Secretaries, Undersecretaries,
and their Assistant Secretaries, are prohibited to hold other
government offices or positions in addition to their primary
positions and to receive compensation therefor, except in cases
where the Constitution expressly provides. The Courts ruling was
in conformity with Section 13, Article VII of the 1987 Constitution
which reads:
Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during their
tenure, directly or indirectly, practice any other profession,
participate in any business or be financially interested in any
other contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency or
instrumentality thereof, including any government-owned or
controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the
fourth civil degree of the President shall not, during his tenure,
be appointed as members of the Constitutional Commissions, or
the Office of the Ombudsman, or as Secretaries,
Undersecretaries, Chairmen, or heads of bureaus or offices,
including government-owned or controlled corporations and
subsidiaries.
Pursuant to the Courts ruling in this case and the Senate
Committee Report on the Accountability of Public Officers and
Investigations (Blue Ribbon),[9] the COA issued Memorandum
No. 97-038 which authorized the issuance of the Notices of
Disallowances for the per diems received by the petitioner. It
states:
The Commission received a copy of Senate Committee Report
No. 509 urging the Commission on Audit to immediately cause
the disallowance of any payment of any form of additional
compensation or remuneration to cabinet secretaries, their
deputies and assistants, or their representatives in violation of
the rule on multiple positions and to effect the refund of any and
all such additional compensation given to and received by the
officials concerned, or their representatives, from the time of the
finality of the Supreme Court ruling in Civil Liberties Union vs.
Executive Secretary to the present. In the Civil Liberties Union
case, the Supreme Court ruled that Cabinet Secretaries, their
deputies and assistants may not hold any other office or
employment. It declared Executive Order No. 284
unconstitutional insofar as it allows Cabinet members, their
deputies and assistants to hold other offices in addition to their
primary office and to receive compensation therefor. The said
decision became final and executory on August 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the
national government agencies and government-owned or
controlled corporations which have effected payment of subject
allowances are directed to implement the recommendation
contained in the subject Senate Committee Report by
undertaking the following audit action: [10]
The petitioner maintains that he is entitled to the payment of per
diems, as R.A. No. 7916 specifically and categorically provides for
the payment of a per diem for the attendance of the members
of the Board of Directors at board meetings of PEZA. The
petitioner contends that this law is presumed to be valid; unless
and until the law is declared unconstitutional, it remains in effect
and binding for all intents and purposes. Neither can this law be
rendered nugatory on the basis of a mere memorandum circular
COA Memorandum No. 97-038 issued by the COA. The petitioner
stresses that R.A. No. 7916 is a statute more superior than an
administrative directive and the former cannot just be repealed
or amended by the latter.
The petitioner also posits that R.A. No. 7916 was enacted four
(4) years after the case of Civil Liberties Union was promulgated.
It is, therefore, assumed that the legislature, before enacting a
law, was aware of the prior holdings of the courts. Since the
constitutionality or the validity of R.A. No. 7916 was never
challenged, the provision on the payment of per diems remains
in force notwithstanding the Civil Liberties Union case.
Nonetheless, the petitioners position as Director IV is not
included in the enumeration of officials prohibited to receive
additional compensation as clarified in the Resolution of the
Court dated August 1, 1991; thus, he is still entitled to receive
the per diems.
The petitioners contentions are untenable.
It must be noted that the petitioners presence in the PEZA Board
meetings is solely by virtue of his capacity as representative of
the Secretary of Labor. As the petitioner himself admitted, there
was no separate or special appointment for such position.[11]
Since the Secretary of Labor is prohibited from receiving
compensation for his additional office or employment, such
prohibition likewise applies to the petitioner who sat in the
Board only in behalf of the Secretary of Labor.
The petitioners case stands on all fours with the case of Dela Cruz
v. Commission on Audit.[12] Here, the Court upheld the COA in
disallowing the payment of honoraria and per diems to the
officers concerned who sat as members of the Board of Directors
of the National Housing Authority. The officers concerned sat as
alternates of their superiors in an ex officio capacity. Citing also
the Civil Liberties Union case, the Court explained thus:
The ex-officio position being actually and in legal contemplation
part of the principal office, it follows that the official concerned
has no right to receive additional compensation for his services
in the said position. The reason is that these services are already
paid for and covered by the compensation attached to his
principal office. It should be obvious that if, say, the Secretary of
Finance attends a meeting of the Monetary Board as an ex-
officio member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in defining
policy in monetary banking matters, which come under the
jurisdiction of his department. For such attendance, therefore,
he is not entitled to collect any extra compensation, whether it
be in the form of a per diem or an honorarium or an allowance,
or some other such euphemism. By whatever name it is
designated, such additional compensation is prohibited by the
Constitution.
Since the Executive Department Secretaries, as ex-officio
members of the NHA Board, are prohibited from receiving extra
(additional) compensation, whether it be in the form of a per
diem or an honorarium or an allowance, or some other such
euphemism, it follows that petitioners who sit as their alternates
cannot likewise be entitled to receive such compensation. A
contrary rule would give petitioners a better right than their
principals.[13]
Similarly in the case at bar, we cannot allow the petitioner who
sat as representative of the Secretary of Labor in the PEZA Board
to have a better right than his principal. As the representative of
the Secretary of Labor, the petitioner sat in the Board in the
same capacity as his principal. Whatever laws and rules the
member in the Board is covered, so is the representative; and
whatever prohibitions or restrictions the member is subjected,
the representative is, likewise, not exempted. Thus, his position
as Director IV of the DOLE which the petitioner claims is not
covered by the constitutional prohibition set by the Civil Liberties
Union case is of no moment. The petitioner attended the board
meetings by the authority given to him by the Secretary of Labor
to sit as his representative. If it were not for such designation,
the petitioner would not have been in the Board at all.
There is also no merit in the allegation that the legislature was
certainly aware of the parameters set by the Court when it
enacted R.A. No. 7916, four (4) years after the finality of the Civil
Liberties Union case. The payment of per diems was clearly an
express grant in favor of the members of the Board of Directors
which the petitioner is entitled to receive.
It is a basic tenet that any legislative enactment must not be
repugnant to the highest law of the land which is the
Constitution. No law can render nugatory the Constitution
because the Constitution is more superior to a statute.[14] If a
law happens to infringe upon or violate the fundamental law,
courts of justice may step in to nullify its effectiveness.[15] It is
the task of the Court to see to it that the law must conform to
the Constitution. In the clarificatory resolution issued by the
Court in the Civil Liberties Union case on August 1, 1991, the
Court addressed the issue as to the extent of the exercise of
legislative prerogative, to wit:
The Solicitor General next asks: x x x may the Decision then
control or otherwise encroach on the exclusive competence of
the legislature to provide funds for a public purpose, in terms of
compensation or honoraria under existing laws, where in the
absence of such provision said laws would otherwise meet the
terms of the exception by law? Again, the question is anchored
on a misperception. It must be stressed that the so-called
exclusive competence of the legislature to provide funds for a
public purpose or to enact all types of laws, for that matter, is
not unlimited. Such competence must be exercised within the
framework of the fundamental law from which the Legislature
draws its power and with which the resulting legislation or
statute must conform. When the Court sets aside legislation for
being violative of the Constitution, it is not thereby substituting
its wisdom for that of the Legislature or encroaching upon the
latters prerogative, but again simply discharging its sacred task
of safeguarding and upholding the paramount law.
The framers of R.A. No. 7916 must have realized the flaw in the
law which is the reason why the law was later amended by R.A.
No. 8748[16] to cure such defect. In particular, Section 11 of R.A.
No. 7916 was amended to read:
SECTION 11. The Philippine Economic Zone Authority (PEZA)
Board. There is hereby created a body corporate to be known as
the Philippine Economic Zone Authority (PEZA) attached to the
Department of Trade and Industry. The Board shall have a
director general with the rank of department undersecretary
who shall be appointed by the President. The director general
shall be at least forty (40) years of age, of proven probity and
integrity, and a degree holder in any of the following fields:
economics, business, public administration, law, management or
their equivalent, and with at least ten (10) years relevant working
experience preferably in the field of management or public
administration.
The director general shall be assisted by three (3) deputy
directors general each for policy and planning, administration
and operations, who shall be appointed by the PEZA Board, upon
the recommendation of the director general. The deputy
directors general shall be at least thirty-five (35) years old, with
proven probity and integrity and a degree holder in any of the
following fields: economics, business, public administration, law,
management or their equivalent.
The Board shall be composed of thirteen (13) members as
follows: the Secretary of the Department of Trade and Industry
as Chairman, the Director General of the Philippine Economic
Zone Authority as Vice-chairman, the undersecretaries of the
Department of Finance, the Department of Labor and
Employment, the Department of [the] Interior and Local
Government, the Department of Environment and Natural
Resources, the Department of Agriculture, the Department of
Public Works and Highways, the Department of Science and
Technology, the Department of Energy, the Deputy Director
General of the National Economic and Development Authority,
one (1) representative from the labor sector, and one (1)
representative from the investors/business sector in the
ECOZONE. In case of the unavailability of the Secretary of the
Department of Trade and Industry to attend a particular board
meeting, the Director General of PEZA shall act as Chairman.[17]
As can be gleaned from above, the members of the Board of
Directors was increased from 8 to 13, specifying therein that it is
the undersecretaries of the different Departments who should
sit as board members of the PEZA. The option of designating his
representative to the Board by the different Cabinet Secretaries
was deleted. Likewise, the last paragraph as to the payment of
per diems to the members of the Board of Directors was also
deleted, considering that such stipulation was clearly in conflict
with the proscription set by the Constitution.
Prescinding from the above, the petitioner is, indeed, not
entitled to receive a per diem for his attendance at board
meetings during his tenure as member of the Board of Director
of the PEZA.
IN LIGHT OF THE FOREGOING, the petition is DISMISSED. The
assailed decision of the COA is AFFIRMED.
SO ORDERED.
G.R. No. 95445 August 6, 1991
MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION, FIDEL
FABABIER MERLIN ANONUEVO, MINDA GALANG and other
teacher-members so numerous similarly situated, petitioners-
appellants,
vs.
THE HON. PERFECTO LAGUIO JR., in his capacity as Presiding
Judge of the Regional Trial Court of Manila, Branch 18, HON.
ISIDRO CARIÑO, in his capacity as Secretary of Education, Culture
and Sports and the HON. ERLINDA LOLARGA in her capacity as
Manila City Schools Superintendent, respondents-appellees.
G.R No. 95590 August 6, 1991
ALLIANCE OF CONCERNED TEACHERS (ACT), ENRIQUE D.
TORRES, RODRIGO G. NATIVIDAD, FRANCISCO A. NERECINA, EVA
V. FERIA, LUCIA R. CARRASCO, LEO R. RAMBOYONG, ZENEIDA
PEREZ, MARIA ACEJO AND OTHER SIMILARLY SITUATED PUBLIC
SCHOOL TEACHERS TOO NUMEROUS TO BE IMPLEADED,
petitioners,
vs.
HON. ISIDRO CARIÑO in his capacity as Secretary of Education,
Culture and Sports and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and Management, respondents.
Free Legal Assistance Group, Movement of Attorneys for
Brotherhood Integrity & Nationalism and Union of Lawyers and
Advocates for petitioners in G.R. No. 95590.
Gregorio Fabros for petitioners in G.R. No. 95445.
NARVASA, J.:
The series of events that touched off these cases started with the
so-called "mass action" undertaken by some 800 public school
teachers, among them members of the petitioning associations
in both cases, on September 17, 1990 to "dramatize and
highlight"1 the teachers' plight resulting from the alleged failure
of the public authorities to act upon grievances that had time
and again been brought to the latter's attention.
The petition in G.R. No. 95590 alleges in great detail the
character and origins of those grievances as perceived by the
petitioners, and the attempts to negotiate their correction;2
these are more briefly, but quite adequately and with no sacrifice
of relevant content, set forth in the petition in G.R. No. 954451,
portions of which are quoted hereunder without necessarily
affirming their objective truth or correctness:
3. Together with other teachers embracing the Teachers and
Employees Consultative Council (TECC) and the Alliance of
Concerned Teachers, the petitioners, in accordance with their
Constitution and By-Laws, resolved to engage in mass concerted
actions, after peaceful dialogues with the heads of the
Department of the Budget and Management, Senate and House
of Representatives in public hearings as well as after exhausting
all administrative remedies, to press for, among other things, the
immediate payment of due chalk, clothing allowances, 13th
month pay for 1989 arising from the implementation of the
Salary Standardization Law, the recall of DECS Order 39 s. 1990
directing the oversizing of classes and overloading of teachers
pursuant to the cost-cutting measures of the government, the
hiring of 47,000 new teachers to ease the overload of existing
teachers, the return of the additional 1% real property taxes
collected by local government units to education purposes to be
administered by the Local School Boards, and consequent recall
of DBM Circulars Nos. 904 and 9011 and local budget circular No.
47 consistent with RA 5447 and the new Constitution mandating
that education shall enjoy the highest budgetary priority in the
national budget, and other equally important demands; The
dialogues and conferences initiated by the petitioners and other
teacher organizations were as early as March 14, 1989, March
14, 1990, April 23, 1990, May 28, 1990, June 5, 1990, September
3, 1990 and September 14, 1990 with the Civil Service
Commission, the Senate and House of Representatives,
Department of Budget and Management and the Department of
Education, Culture and Sports, but all these did not result in the
granting of the demands of the petitioners, leaving them with no
other recourse but to take direct mass action such as the one
they engaged in three weeks ago.
4. On September 14, 1990, the petitioners and other teachers in
other cities and municipalities in Metro Manila, staged a protest
rally at the DECS premises without disrupting classes as a last call
for the government to negotiate the granting of demands. No
response was made by the respondent Secretary of Education,
despite the demonstration, so the petitioners began the ongoing
protest mass actions on September, 17,1990. ...3
September 17, 1990 fell on a Monday, which was also a regular
school day. There is no question that the some 800 teachers who
joined the mass action did not conduct their classes on that day;
instead, as alleged in the petition in G.R. No. 95590,4 they
converged at the Liwasang Bonifacio in the morning whence they
proceeded to the National Office of the Department of
Education, Culture and Sport (DECS) for a whole-day assembly.
At about 1:00 o'clock p.m., three representatives of the group
were allowed to see the respondent Secretary of Education who
"brushed aside their grievances," warned them that they would
lose their jobs for going on illegal and unauthorized mass leave.
Upon leaving said respondent's presence, they were handed an
order directing all participants in the mass action to return to
work in 24 hours or face dismissal, and a memorandum directing
the DECS officials concerned to initiate dismissal proceedings
against those who did not comply and to hire their
replacements.5 Those directives notwithstanding, the mass
actions continued into the week, with more teachers joining in
the days that followed. In its issue of September 19, 1990, the
newspaper Manila Standard reported that the day previous, the
respondent Secretary of Education had relieved 292 teachers
who did not return to their classes. The next day, however,
another daily, Newsday, reported that the Secretary had revoked
its dismissal order and instead placed 56 of the 292 teachers
under preventive suspension, despite which the protesters'
numbers had swelled to 4,000.6
On the record, what did happen was that, based on reports
submitted by the principals of the various public schools in Metro
Manila, the respondent Secretary of Education had filed motu
proprio administrative complaints against the teachers who had
taken part in the mass actions and defied the return-to-work
order on assorted charges like grave misconduct, gross neglect
of duty, gross violation of the Civil Service Law, absence without
official leave, etc., and placed them under 90-day preventive
suspension. The respondents were served copies of the charge
sheets and given five (5) days to submit answer or explanation.
Later, on October 8, 1990, the respondent Secretary constituted
an investigating committee of four (4) to determine and take the
appropriate course of action on the formal charges and
designated the special prosecutors on detail with the DECS to
handle their prosecution during the formal hearings.7
On October 11, 1990, the respondent Secretary of Education
rendered the first of his now questioned decisions on the
administrative complaints. In Case No. DECS 90-002, he found
twenty (20) respondent teachers guilty of the charges preferred
against them and dismissed them from office, effective
immediately.8 In the other investigations that followed and as of
December 3, 1990, 658 teachers were dismissed, 40 were
suspended for one (1) year, 33 for nine (9) months, and 122 for
six (6) months; 398 were exonerated.9
Earlier, on September 19, 1990, the petitioners in G.R. No. 95445
had filed with the Regional Trial Court of Manila Branch 18, a
petition10 for prohibition, declaratory relief and preliminary
mandatory injunction to restrain the implementation of the
return-to-work order of September 17, 1990 and the suspension
or dismissal of any teacher pursuant thereto and to declare said
order null and void. Issuance ex-parte of a temporary restraining
order was sought, but seeing no compelling reason therefor, the
Regional Trial Court instead set the application for preliminary
injunction for hearing, and heard the same, on September 24,
1990. Thereafter and following the submission of
memorandums by the parties, said Court rendered judgment
declaring the assailed return-to-work order valid and binding,
and dismissing the petition for lack of merit.11
Review of said judgment is sought in G. R. No. 95445.
 "inevitable outcome" of issues already pending final
determination by the Court.
G.R. No. 95590 is a parallel original proceeding for prohibition,
mandamus and certiorari grounded on the same state of facts
and instituted for substantially the same purpose i.e., the
The Court's Resolution of December 18, 1990, supra, denying the
invalidation of the return-to-work order of the respondent
petitioners' plea for restoration of the status quo ante and to
Secretary of Education and all orders of suspension and/or
restrain/enjoin further suspensions of, and the initiation or
dismissal thereafter issued by said respondent against the
continuation of, administrative proceedings against the teachers
teachers who had taken part in the mass actions of September
involved, is based on the following postulates:
17, 1990 and the days that followed.

(1) the undenied indeed, the pleaded and admitted fact that
Both cases were ordered consolidated by Resolution issued on
about 800 teachers, among them the individual petitioners and
October 25, 1990,12 and separate comments were filed by the
other unnamed but "similarly situated" members of the
Solicitor General on behalf of the public respondents, in G.R. No.
petitioning associations in both cases, unauthorizedly absented
95445 on October 31, 1990, and in G.R. No. 95590 on December
themselves from their classes on a regular schoolday, September
5, 1990.13 On November 20, 1990 the parties were heard in oral
17, 1990, in order to participate in a "mass action" to dramatize
argument on the petitioners' united pleas for a temporary
their grievances concerning, in the main, the alleged failure of
restraining order/mandatory injunction to restore the status quo
the public authorities, either to implement at all or to implement
ante and enjoin the public respondents from continuing with the
in a just and correct manner, certain laws and measures
issuance of suspension orders and proceeding with the
intended to benefit them materially;
administrative cases against the teachers involved in the mass
actions.

(2) the fact, too, that in the days that followed, more mass
actions for the same purpose were undertaken, notwithstanding
Said pleas were denied by the Court in its Resolution of
a return-to-work order issued by the respondent Secretary of
December 18, 1990,14 and a motion for reconsideration filed by
Education; more teachers joined the so-called "peaceful
the petitioners in G.R. No. 95590 was likewise denied.
assemblies" on September 18, 1990 and the number rising to
4,000 on September 19, 1990;17

In two separate but identically-worded motions filed on their

behalf by Atty. Froilan M. Bacungan,15 the following persons, to
(3) that from the pleaded and admitted facts, these "mass
wit: Florita D. Guazon, Elisea G. Lazo, Gonzala G. Sioson,
actions" were to all intents and purposes a strike; they
Esperanza Valero, Nenita Pangilinan, Ramon David, Aurora Bosi,
constituted a concerted and unauthorized stoppage of, or
Encarnita David, Socorro Sentin, Crispulo Santos, Rodriguez
absence from, work which it was the teachers' duty to perform,
Bagana, Rodolfo D. Bacsal, Ruben Bersamina, Rodolfo Arroyo,
undertaken for essentially economic reasons;
Irene Gadil, Rebecca Roldan, Rosita Samson, Priscilla Avendia,
Arturo Cabuhat, Rosalinda Caoili, Angelina Corpuz, Purisima
Lena, Elsie Somera, Dedaica Jusay, Teresita Partoza, Gloria
Salvador, Catherine San Agustin, Nestor Aguirre, Lorenzo Real, (4) that this court had already definitively ruled that employees
Celia Ronquillo, Vicente Carranza, Jessie Villanueva, Yolanda in the public (civil) service, unlike those in the private sector, do
Alura, Clara Alvarez, Danilo Llamas, Ladera Panita Myrna, Sena, not have the right to strike, although guaranteed the right to self-
Zenaida Ligon, Daisy S. Conti, Danilo Caballes, Susan Maragat, organization, to petition Congress for the betterment of
Roberto Manlangit and Elizabeth T. Aguirre, seek leave to employment terms and conditions and to negotiate with
withdraw as parties in G.R. No. 95590. These movants claim that appropriate government agencies for the improvement of such
they are such parties although not individually so named in the working conditions as are not fixed by law;18
petition in said case, being among those referred to in its title as
"other similarly situated public school teachers too numerous to
be impleaded," who had been administratively charged, then (5) that upon the foregoing premises, it was prima facie lawful
preventively suspended and/or dismissed in the wake of the and within his statutory authority for the respondent Secretary
mass actions of September 1990. They assert that since this of Education to take the actions complained of, to wit: issue a
Court is not a trier of facts, they have opted to appeal the return-to-work order, prefer administrative charges against, and
questioned decisions or actuations of the respondent Secretary place under preventive suspension, those who failed to comply
of Education to the Civil Service Commission where they believe with said order, and dismiss from the service those who failed to
they will have "... all the opportunity to introduce evidence on answer or controvert the charges;19
how (Secretary) Cariño violated their constitutional rights to due
process of law ... security of tenure and ... peaceably to assemble
and petition the government for redress of grievances ...." The Court has not since been presented with any consideration
of law or established fact that would impair the validity of these
postulates or preclude continued reliance thereon for the
An opposition to the first motion was filed16 which, briefly, purpose of resolving the present petitions on their merits.
contended that, as this Court had already found that the
petitioners had gone on an unlawful strike and that public
respondent Cariño's acts were prima facie lawful, the motion
was either an attempt at forum-shopping or meant to avoid the
The underlying issue here is due process; not whether the
petitioners have a right to strike, which it is clear they do not,
however justifiable their reasons, nor whether or not there was
in fact such a strike, it being equally evident from the pleadings
that there was, and there being no dispute about this. What
therefore, is brought before the Court is the question of whether
or not any rights of the petitioners under the due process clause
of the Constitution as it applies to administrative proceedings
were violated in the initiation, conduct, or disposition of the
investigations complained of.
Indeed, what the petitioners in G.R. No. 95590 proclaim about
denial of due process being their "paramount complaint" ...
"central to their prayer for interlocutory relief'20 could as well
be said of the merits of their main cause as of their plea for a
restraining order pendente lite or a preliminary injunction.
There are, however, insuperable obstacles to the Court's taking
up that issue and resolving it in these cases. Said issue is not ripe
for adjudication by this Court in the exercise of its review
jurisdiction; and this, for the obvious reason that it is one of fact.
The petitions and subsequent pleadings of the petitioners allege
facts and circumstances which, it is claimed, show denial of due
process, citing as supposedly "representative samples"21 among
others: (a) that teachers were dismissed on the sole basis of
unsworn reports of their principals and without evidence of their
alleged failure to obey the return-to-work order; (b) that the
charge sheets failed to specify the particular charges or offenses
allegedly committed; (c) that some teachers were not furnished
sworn complaints, and others were suspended without any
formal charges; (d) that teachers who attempted to return within
a reasonable time after notice of the return-to-work order were
not accepted back; and similar allegations.
These are however denied and disputed by the public
respondents, who set forth their own version, initially in their
separate Comments in both cases and, later and in greater detail,
in their Consolidated Memorandum of December 3, 1990, supra,
from which the following passages are quoted:
(6) Petitioners in G.R. No. 95545 and G.R. No. 95590 admit
engaging in a strike (referred by semantic interplay as "concerted
activity" or "mass action") directed against public respondent
Cariño beginning September 17, 1990, MPSTA Petition, pp. 3, 9;
ACT Petition, pp. 1516).
To avoid the disruption of classes, public respondent Cariño, also
on September 17, 1990, issued a 'return to work order'
reminding striking workers that in law, they cannot engage in
strike and warning them that dismissal proceedings will be
instituted against them if they do not return to work with 24
hours from their walkout (MPSTA Petition, p. 4; ACT Petition, p.
15) and a memorandum to DECS officials instructing them to
notify the striking teachers to return to work within 24 hours
from their walkout and to initiate dismissal proceedings against
those who defy the return to work order as well as to hire
temporary replacements, MPSTA Petition, p. 4; ACT Petition, pp.
15-16).
The striking teachers who did not heed the return-to-work order
were administratively charged and preventively suspended for
ninety days for grave misconduct, gross neglect of duty,
insubordination, refusal to perform official duty, absence
without leave beginning September 17, 1990 and other
violations of Civil Service Law, rules and regulations. All of striking
teachers were served with the suspension orders and the change
sheets notifying them of the charges and giving them five (5)
days from receipt of the charge sheets within which to file their
respective answers.
With the filing of the administrative complaints and the receipt
of the answers of some of the teachers involved, public
respondent Carino on October 8, 1990 issued a Memorandum
forming an Investigation Committee composed of Atty, Reno
Capinpin of DECS Administrative Services as Chairman Dr.
Alberto Mendoza, representing the Division Supervisors, Atty.
Evangeline de Castro, representing the City Superintendent of
Schools of Manila, and Atty. Isaias Meleto representing the
National PPSTA Organization, as members. Copy of the aforesaid
Memorandum is hereto attached as Annex "I."
The committee was authorized to meet everyday, even as
Special Prosecutors from the Department of justice on detail
with the DECS were designated to handle the prosecution during
the formal hearings. (Ibid.)
Petitioners in GR No. 95545' and 'G.R. No. 95590' admit having
received the charge sheets and notices of preventive suspension
wherein they were given five days from receipt of the charges
within which to file their answers (MPSTA Petition, p. 4-1 ACT
Petition, p. 16, Annexes x , to , AA ).
xxx xxx xxx
... Many striking teachers received their preventive suspension
orders and the charge sheets from their respective principals
when they visited their schools. Many refused to receive and sign
receipt therefor; others tore up the preventive suspension
orders and charge sheets in front of their principals. Instead,
they took the occasion to belittle and insult the substitute
teachers who took over their classrooms temporarily.
The striking teachers were given a period of five days to file their
Answers in line with Sec. 8, Rule III of Rules on Administrative
Disciplinary Cases in CSC Memorandum Circular No. 46, s. 1989.
The motion for extension of time to file Answer was denied by
DECS Task Force because it was dilatory the alleged reason being
that Atty. Fabros is handling 2,000 cases of teachers. The DECS
was constrained by Sec. 38(d) of P.D. 807 and Sec. 8 of the
Memorandum Circular mentioned which mandate that
administrative cases must be decided within 30 days from the
filing of the charges. Another reason was that many refused to
receive the notice of charges. Also, to delay the resolution of the
cases was to their disadvantage.
Moreover, another reason proferred was that the Regional Trial
Court (RTC) of Manila still had to act on the petition before it.
However, the Motion was filed AFTER the RTC Manila had
already dismissed the Petition.
Nevertheless, answers to the administrative complaints started
pouring in at the DECS, as prepared personally by the striking
teachers or by their lawyers.
After initial assessments of the reports coming in from the
principals of the schools concerned and the answers of the
striking teachers, the DECS Special Task Force prepared on
October 9, 1990 and submitted to respondent Secretary Carino
the Guidelines and Criteria as to the nature of the evidence to be
assessed and the corresponding penalty to be imposed against
the striking teachers, which was approved by respondent
Secretary Carino on the same day. A copy of the aforesaid
Guidelines and Criteria is hereto attached as Annex "2."
Thereafter, the DECS Special Task Force proceeded with its task
of investigating the cases against the striking teachers.
Those who refused to sign the DECS return-to-work order, the
preventive suspension orders and the charge sheets, some even
tearing up the documents presented to them by their principals
were considered by the DECS Special Task Force as having
waived their right to be heard; their cases had to be resolved on
the basis of the records. Nevertheless, the DECS Special Task
Force summoned the principals concerned, who then testified
under oath confirming their reports on the absences of the
striking teachers. Some clarificatory questions were asked of
them on the manner of the service of the DECS orders and the
situation obtaining in their schools.
For those who answered the charge sheets, the DECS Special
Task Force set the administrative cases for hearing. Many of the
striking teachers refused to appear at the hearings but preferred
to submit their case on the basis of their answers.
With regard to those who attended the hearings, each of the
absent or striking teachers was investigated and asked questions
under oath on their answers and the reasons for their absences
and/or joining the teachers' strike. Some teachers reiterated
their answers to the charge sheets, either giving justifiable
reasons for their absences on the days mentioned or maintaining
their stubborn stand that they have all the right to absent
themselves from classes in the exercise of their constitutional
right to join mass action to demand from the government what
are supposedly due them. Still the DECS Special Task Force was
not satisfied with their written answers and explanation during
the hearings. The principals of the striking teachers were
summoned and they confirmed under oath their reports of
absences and/or on teachers joining the strike.
After having conducted fully their investigations, the DECS
Special Task Force submitted in series their investigation reports
and recommendation for each category of striking teachers to
respondent Secretary Carino. The investigation reports, together
with their supporting documents, submitted by the DECS Special
Task Force indicated clearly the manner and conduct of the
administrative hearings, the nature and weight of the evidence
adduced, and the correspondingly penalty or exoneration
recommended.
On the bases of the investigation reports and recommendations
of the DECS Special Task Force, and after evaluating the reports
and its documents attached, respondent Secretary Carino
promulgated the decisions either for exoneration, suspension or
dismissal. Copies of the DECS decisions of exoneration,
suspension or dismissal were forwarded to the principals of the
striking teachers concerned. Those exonerated were allowed to
resume their duties and received their back salaries. Some of the
teachers either suspended or dismissed have already received
the copies of the decisions, either personally or through mail.
xxx xxx x x x22
This copious citation is made, not to suggest that the Court finds
what is stated therein to be true and the contrary averments of
the petitions to be false, but precisely to stress that the facts
upon which the question of alleged denial of due process would
turn are still in issue, actively controverted, hence not yet
established.
It is not for the Court, which is not a trier of facts, as the
petitioners who would now withdraw correctly put it, to make
the crucial determination of what in truth transpired concerning
the disputed incidents. Even if that were within its competence,
it would be at best a monumental task. At any rate, the
petitioners cannot-as it seems they have done lump together
into what amounts to a class action hundreds of individual cases,
each with its own peculiar set of facts, and expect a ruling that
would justly and correctly resolve each and everyone of those
cases upon little more than general allegations, frontally
disputed as already pointed out, of incidents supposedly
"representative" of each case or group of cases.
This case illustrates the error of precipitate recourse to the
Supreme Court, especially when numerous parties desparately
situated as far as the facts are concerned gather under the
umbrella of a common plea, and generalization of what should
be alleged with particularity becomes unavoidable. The
petitioners' obvious remedy was NOT to halt the administrative
proceedings but, on the contrary, to take part, assert and
vindicate their rights therein, see those proceedings through to
judgment and if adjudged guilty, appeal to the Civil Service
Commission; or if, pending said proceedings, immediate
recourse to judicial authority was believed necessary because
the respondent Secretary or those acting under him or on his
instructions were acting without or in excess of jurisdiction, or
with grave abuse of discretion, to apply, not directly to the
Supreme Court, but to the Regional Trial Court, where there
would be an opportunity to prove the relevant facts warranting
corrective relief.
Parties-litigant are duty bound to observe the proper order of
recourse through the judicial hierarchy; they by-pass the rungs
of the judicial ladder at the peril of their own causes.23 This
Court is a court of last resort. Its review jurisdiction is limited to
resolving questions of law where there is no dispute of the facts
or the facts have already been determined by lower tribunals,
except only in criminal actions where capital penalties have been
imposed.
WHEREFORE, both petitioners are DISMISSED, without prejudice
to any appeals, if still timely, that the individual petitioners may
take to the Civil Service Commission on the matters complained
of. The motions to withdraw, supra, are merely NOTED, this
disposition rendering any express ruling thereon unnecessary.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 107852 October 20, 1993
GREGORIO M. ARUELO, JR., petitioner,
vs.
THE COURT OF APPEALS, PRESIDING JUDGE, REGIONAL TRIAL
COURT OF BULACAN, BRANCH 17, MALOLOS BULACAN, and
DANILO F. GATCHALIAN, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Venustiano S. Roxas & Associates for private respondent.
QUIASON, J.:
This is a petition for certiorari and prohibition under rule 65 of
the Revised Rules of Court, to set aside the Decision of the Court
of Appeals dated November 24, 1992 in CA-G.R. SP No, 28621,
which ruled that the answer and counter-protest of respondent
Danilo F. Gatchalian was filed timely and ordered the Regional
Trial Court, Branch 17, Malolos, Bulacan to continue with the
proceedings in Civil Case No. 343-M-92, the protest case filed by
petitioner Gregorio N. Aruelo, Jr.
Aruelo and Gatchalian were rival candidates in the May 11, 1992
elections for the office of the Vice-Mayor of the Municipality of
Balagtas, Province of Bulacan. Gatchalian won over Aruelo by a
margin of four votes, such that on May 13, 1992, the Municipal
Board of Canvassers proclaimed him as the duly elected Vice-
Mayor of Balagtas, Bulacan.
On May 22, 1992, Aruelo filed with the Commission on Elections
(COMELEC) a petition docketed as SPC No. 92-130, seeking to
annul Gatchalian's proclamation on the ground of "fraudulent
alteration and tampering" of votes in the tally sheets and the
election returns.
On June 2, 1992, Aruelo filed with the Regional Trial Court,
Branch 17, Malolos, Bulacan, a petition docketed as Civil Case
No. 343-M-92 protesting the same election. Aruelo, however,
informed the trial court of the pendency of the pre-proclamation
case before the COMELEC.
On June 10, 1992, Gatchalian was served an Amended Summons
from the trial court, giving him five days within which to answer
the petition. Instead of submitting his answer, Gatchalian filed
on June 15, 1992 a Motion to Dismiss claiming that: (a) the
petition was filed out of time; (b) there was a pending protest
case before the COMELEC; and (c) Aruelo failed to pay the
prescribed filing fees and cash deposit on the petition.
Meanwhile in SPC Case No. 92-130, the COMELEC on June 6,
1992 denied Aruelo's petition for non-compliance with Section
20 of R.A. No. 7166, which requires the submission of the
evidence and documents in support of the petition to annul
Gatchalian's proclamation (Rollo, p. 42).
The trial court, on the other hand, issued an order dated July 10,
1992, denying Gatchalian's Motion to Dismiss and ordering him
to file his answer to the petition within five days from notice,
otherwise, "a general denial shall be deemed to have been
entered" (Rollo, p. 45). The trial court also directed Aruelo to pay
the deficiency in his filing fee, which the latter complied with.
Gatchalian filed a Motion for Reconsideration of the order but
the trial court denied the same on August 3, 1992.
On August 6, 1992, Gatchalian filed before the Court of Appeals,
a petition for certiorari docketed as CA-G.R. SP No. 28621, which
alleged grave abuse of discretion on the part of the trial court in
denying his Motion to Dismiss and his Motion for
Reconsideration.
Earlier, that is on July 23, 1992, Gatchalian filed before the trial
court a Motion for Bill of Particulars, which was opposed by
Aruelo. The trial court denied Gatchalian's motion in an order
dated August 5, 1992, a copy of which was received by him on
August 6, 1992.
On August 11, 1992, Gatchalian submitted before the trial court
his Answer with Counter-Protest and Counterclaim, alleging inter
alia, that Aruelo was the one who committed the election fraud
and that were it not for the said fraud, Gatchalian's margin over
Aruelo would have been greater. Gatchalian prayed for the
dismissal of the petition, the confirmation of his election and the
award of damages. On the day the answer was filed, the trial
court issued an order admitting it, and without Gatchalian's
specific prayer, directed the revision of ballots in the precincts
enumerated in Gatchalian's Counter-Protest and Construction.
For this purpose, the trial court ordered the delivery of the
contested ballot boxes to the Branch Clerk of Court.
 particulars, shall apply only to proceedings brought before the
COMELEC. Section 2, Rule 1, Part I provides:
On August 14, 1992, Aruelo filed with the trial court a Motion to
Reconsider As Well As To Set Aside "Answer with Counter-
Protest and Counterclaim" Filed Out of Time by Protestee. The
Sec. 2. Applicability — These rules, except Part VI, shall apply
trial court, on September 2, 1992, denied Aruelo's motion and
to all actions and proceedings brought before the Commission.
forthwith scheduled the constitution of the revision committee.
Part VI shall apply to election contests and quo warranto cases
cognizable by courts of general or limited jurisdiction.

On September 28, 1992, Aruelo prayed before the Court of

Appeals for the issuance of a temporary restraining order or a
It must be noted that nowhere in Part VI of the COMELEC Rules
writ of preliminary injunction to restrain the trial court from
of Procedure is it provided that motions to dismiss and bill of
implementing the Order of August 11, 1992, regarding the
particulars are not allowed in election protests or quo warranto
revision of ballots. The Court of Appeals belatedly issued a
cases pending before the regular courts.
temporary restraining order on November 9, 1992, after actual
revision of the contested ballots ended on October 28, 1992.

Constitutionally speaking, the COMELEC can not adopt a rule

prohibiting the filing of certain pleadings in the regular courts.
Meanwhile, Gatchalian filed with the Court of Appeals on
The power to promulgate rules concerning pleadings, practice
September 21, 1992 another petition for certiorari (CA-G.R. SP
and procedure in all courts is vested on the Supreme Court
No. 28977), again alleging grave abuse of discretion on the part
(Constitution, Art VIII, Sec. 5 [5]).
of the trial court in issuing the Order dated August 5, 1992, which
denied his Motion for Bill of Particulars. The Court of Appeals, in
its Resolution dated September 28, 1992, dismissed this petition
for lack of merit. Private respondent received a copy of the order of the Regional
Trial Court denying his motion for a bill of particulars on August
6, 1992. Under Section 1 (b), Rule 12 of the Revised Rules of
Court, a party has at least five days to file his answer after receipt
On November 24, 1992, the Court of Appeals rendered a
of the order denying his motion for a bill of particulars. Private
decision in CA-G.R. SP No. 28621, denying Gatchalian's petition,
respondent, therefore, had until August 11, 1992 within which
but declared, at the same time, that Gatchalian's Answer With
to file his answer. The Answer with Counter-Protest and
Counter-Protest and Counterclaim was timely filed. The
Counterclaim filed by him on August 11, 1992 was filed timely.
appellate court also lifted the temporary restraining order and
ordered the trial court to "proceed with dispatch in the
proceedings below" (Rollo, p. 212).
The instant case is different from a pre-proclamation
controversy which the law expressly mandates to be resolved in
a summary proceeding (B.P. Blg. 881, Art. XX, Sec. 246; COMELEC
Hence, this petition.
Rules of Procedure, Part V, Rule 27, Sec. 2; Dipatuan v.
Commission on Elections, 185 SCRA 86 [1990]). Pre-
proclamation controversies should be summarily decided,
Aruelo claims that in election contests, the COMELEC Rules of
consistent with the legislators' desire that the canvass of the
Procedure gives the respondent therein only five days from
votes and the proclamation of the winning candidate be done
receipt of summons within which to file his answer to the
with dispatch and without unnecessary delay. Questions as those
petition (Part VI, Rule 35, Sec. 7) and that this five-day period had
involving the appreciation of the votes and the conduct of the
lapsed when Gatchalian filed his answer. According to him, the
balloting, which require more deliberate and necessarily longer
filing of motions to dismiss and motions for bill of particulars is
consideration, are left for examination in the corresponding
prohibited by Section 1, Rule 13, Part III of the COMELEC Rules
election protest (Abella v. Larrazabal, 180 SCRA 509 [1989];
of Procedure; hence, the filing of said pleadings did not suspend
Alonto v. Commission on Elections, 22 SCRA 878 [1968]).
the running of the five-day period, or give Gatchalian a new five-
day period to file his answer.

An election protest does not merely concern the personal

We do not agree.
Petitioner filed the election protest (Civil Case No. -343-M-92)
with the Regional Trial Court, whose proceedings are governed
by the Revised Rules of Court.
Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is
not applicable to proceedings before the regular courts. As
expressly mandated by Section 2, Rule 1, Part I of the COMELEC
Rules of Procedure, the filing of motions to dismiss and bill of
interests of rival candidates for an office. Over and above the
desire of the candidates to win, is the deep public interest to
determine the true choice of the people. For this reason, it is a
well-established principle that laws governing election protests
must be liberally construed to the end that the popular will,
expressed in the election of public officers, will not, by purely
technical reasons, be defeated (Unda v. Commission on
Elections, 190 SCRA 827 [1990]; De Leon v. Guadiz, Jr., 104 SCRA
591 [1981]; Macasundig v. Macalangan, 13 SCRA 577 [1965];
Corocoro v. Bascara, 9 SCRA 519 [1963]).
We find no grave abuse of discretion on the part of the Court of
Appeals.

WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
[G.R. No. 108399. July 31, 1997]
RAFAEL M. ALUNAN III, in his capacity as Secretary of the
Department of Interior and Local Government (DILG), the
BOARD OF ELECTION SUPERVISORS composed of Atty. RUBEN M.
RAMIREZ, Atty. RAFAELITO GARAYBLAS, and Atty. ENRIQUE C.
ROA, GUILLERMINA RUSTIA, in her capacity as Director of the
Barangay Bureau, City Treasurer Atty. ANTONIO ACEBEDO,
Budget Officer EUFEMIA DOMINGUEZ, all of the City
Government of Manila, petitioners, vs. ROBERT MIRASOL,
NORMAN T. SANGUYA, ROBERT DE JOYA, ARNEL R. LORENZO,
MARY GRACE ARIAS, RAQUEL L. DOMINGUEZ, LOURDES
ASENCIO, FERDINAND ROXAS, MA. ALBERTINA RICAFORT,and
BALAIS M. LOURICH, and the HONORABLE WILFREDO D.
REYES,Presiding Judge of the Regional Trial Court, Branch 36,
Metro Manila, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision dated
January 19, 1993 of the Regional Trial Court of Manila (Branch
36),[1] nullifying an order of the Department of Interior and Local
Government (DILG), which in effect cancelled the general
elections for the Sangguniang Kabataan (SK) slated on December
4, 1992 in the City of Manila, on the ground that the elections
previously held on May 26, 1990 served the purpose of the first
elections for the SK under the Local Government Code of 1991
(R.A. No. 7160).
Section 423 of the Code provides for a SK in every barangay, to
be composed of a chairman, seven (7) members, a secretary, and
a treasurer. Section 532(a) provides that the first elections for
the SK shall be held thirty (30) days after the next local elections.
The Code took effect on January 1, 1992.
The first local elections under the Code were held on May 11,
1992. Accordingly, on August 27, 1992, the Commission on
Elections issued Resolution No. 2499, providing guidelines for
the holding of the general elections for the SK on September 30,
1992. The guidelines placed the SK elections under the direct
control and supervision of the DILG, with the technical assistance
of the COMELEC.[2] After two postponements, the elections
were finally scheduled on December 4, 1992.
Accordingly, registration in the six districts of Manila was
conducted. A total of 152,363 youngsters, aged 15 to 21 years
old, registered, 15,749 of them filing certificates of candidacies.
The City Council passed the necessary appropriations for the
elections.
On September 18, 1992, however, the DILG, through then
Secretary Rafael M. Alunan III, issued a letter-resolution
exempting the City of Manila from holding elections for the SK
on the ground that the elections previously held on May 26, 1990
were to be considered the first under the newly-enacted Local
Government Code. The DILG acted on a letter of Joshue R.
Santiago, acting president of the KB City Federation of Manila
and a member of City Council of Manila, which called attention
to the fact that in the City of Manila elections for the Kabataang
Barangay (the precursor of the Sangguniang Kabataan) had
previously been held on May 26, 1990. In its resolution, the DILG
stated:
[A] close examination of . . . RA 7160 would readily reveal the
intention of the legislature to exempt from the forthcoming
Sangguniang Kabataan elections those kabataang barangay
chapters which may have conducted their elections within the
period of January 1, 1988 and January 1, 1992 under BP 337.
Manifestly the term of office of those elected KB officials have
been correspondingly extended to coincide with the term of
office of those who may be elected under RA 7160.
On November 27, 1992 private respondents, claiming to
represent the 24,000 members of the Katipunan ng Kabataan,
filed a petition for certiorari and mandamus in the RTC of Manila
to set aside the resolution of the DILG. They argued that
petitioner Secretary of Interior and Local Government had no
power to amend the resolutions of the COMELEC calling for
general elections for SKs and that the DILG resolution in question
denied them the equal protection of the laws.
On November 27, 1992, the trial court, through Executive Judge,
now COMELEC Chairman, Bernardo P. Pardo, issued an
injunction, ordering petitioners to desist from implementing the
order of the respondent Secretary dated September 18, 1992, .
. . until further orders of the Court. On the same day, he ordered
petitioners to perform the specified pre-election activities in
order to implement Resolution No. 2499 dated August 27, 1992
of the Commission on Elections providing for the holding of a
general election of the Sangguniang Kabataan on December 4,
1992 simultaneously in every barangay throughout the country.
The case was subsequently reraffled to Branch 36 of the same
court. On January 19, 1993, the new judge, Hon. Wilfredo D.
Reyes, rendered a decision, holding that (1) the DILG had no
power to exempt the City of Manila from holding SK elections on
December 4, 1992 because under Art. IX, C, 2(1) of the
Constitution the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall is vested solely in the
COMELEC; (2) the COMELEC had already in effect determined
that there had been no previous elections for KB by calling for
general elections for SK officers in every barangay without
exception; and (3) the exemption of the City of Manila was
violative of the equal protection clause of the Constitution
because, according to the DILGs records, in 5,000 barangays KB
elections were held between January 1, 1988 and January 1,
1992 but only in the City of Manila, where there were 897
barangays, was there no elections held on December 4, 1992.
Petitioners sought this review on certiorari. They insist that the
City of Manila, having already conducted elections for the KB on
May 26, 1990, was exempted from holding elections on
December 4, 1992. In support of their contention, they cite
532(d) of the Local Government Code of 1991, which provides
that:
All seats reserved for the pederasyon ng mga sangguniang
kabataan in the different sanggunians shall be deemed vacant
until such time that the sangguniang kabataan chairmen shall
have been elected and the respective pederasyon presidents
have been selected: Provided, That, elections for the kabataang
barangay conducted under Batas Pambansa Blg. 337 at any time
between January 1, 1988 and January 1, 1992 shall be
considered as the first elections provided for in this Code. The
term of office of the kabataang barangay officials elected within
the said period shall be extended correspondingly to coincide
with the term of office of those elected under this Code.
(emphasis added)
They maintain that the Secretary of the DILG had authority to
determine whether the City of Manila came within the exception
clause of 532(d) so as to be exempt from holding the elections
on December 4, 1992.
The preliminary question is whether the holding of the second
elections on May 13, 1996[3] rendered this case moot and
academic. There are two questions raised in this case. The first is
whether the Secretary of Interior and Local Government can
exempt a local government unit from holding elections for SK
officers on December 4, 1992 and the second is whether the
COMELEC can provide that the Department of Interior and Local
Government shall have direct control and supervision over the
election of sangguniang kabataan with the technical assistance
by the Commission on Elections.
We hold that this case is not moot and that it is in fact necessary
to decide the issues raised by the parties. For one thing, doubt
may be cast on the validity of the acts of those elected in the May
26, 1990 KB elections in Manila because this Court enjoined the
enforcement of the decision of the trial court and these officers
continued in office until May 13, 1996. For another, this case
comes within the rule that courts will decide a question
otherwise moot and academic if it is capable of repetition, yet
evading review.[4] For the question whether the COMELEC can
validly vest in the DILG the control and supervision of SK
elections is likely to arise in connection with every SK election
and yet the question may not be decided before the date of such
elections.
In the Southern Pacific Terminal case, where the rule was first
articulated, appellants were ordered by the Interstate
Commerce Commission to cease and desist from granting a
shipper what the ICC perceived to be preferences and
advantages with respect to wharfage charges. The cease and
desist order was for a period of about two years, from
September 1, 1908 (subsequently extended to November 15),
but the U.S. Supreme Court had not been able to hand down its
decision by the time the cease and desist order expired. The case
was decided only on February 20, 1911, more than two years
after the order had expired. Hence, it was contended that the
case had thereby become moot and the appeal should be
dismissed. In rejecting this contention, the Court held:
The question involved in the orders of the Interstate Commerce
Commission are usually continuing (as are manifestly those in
the case at bar), and these considerations ought not to be, as
they might be, defeated, by short-term orders, capable of
repetition, yet evading review, and at one time the government,
and at another time the carriers, have their rights determined by
the Commission without a chance of redress.[5]
In Roe v. Wade,[6] petitioner, a pregnant woman, brought suit in
1970 challenging anti-abortion statutes of Texas and Georgia on
the ground that she had a constitutional right to terminate her
pregnancy at least within the first trimester. The case was not
decided until 1973 when she was no longer pregnant. But the
U.S. Supreme Court refused to dismiss the case as moot. It was
explained: [W]hen, as here, pregnancy is a significant fact in the
litigation, the normal 266-day human gestation period is so short
that the pregnancy will come to term before the usual appellate
process is complete. If that termination makes a case moot,
pregnancy litigation seldom will survive. Our laws should not be
that rigid. Pregnancy provides a classic justification for a
conclusion of nonmootness. It truly could be capable of
repetition, yet evading review.[7]
We thus reach the merits of the questions raised in this case. The
first question is whether then DILG Secretary Rafael M. Alunan III
had authority to determine whether under 532(d) of the Local
Government Code, the City of Manila was required to hold its
first elections for SK. As already stated, petitioners sustain the
affirmative side of the proposition. On the other hand,
respondents argue that this is a power which Art.IX,C, 2(1) of the
Constitution vests in the COMELEC. Respondents further argue
that, by mandating that elections for the SK be held on
December 4, 1992 in every barangay, the COMELEC in effect
determined that there had been no elections for the KB
previously held in the City of Manila.
We find the petition to be meritorious.
First. As already stated, by 4 of Resolution No. 2499, the
COMELEC placed the SK elections under the direct control and
supervision of the DILG. Contrary to respondents contention,
this did not contravene Art. IX, C, 2(1) of the Constitution which
provides that the COMELEC shall have the power to enforce and
administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall. Elections
for SK officers are not subject to the supervision of the COMELEC
in the same way that, as we have recently held, contests
involving elections of SK officials do not fall within the jurisdiction
of the COMELEC. In Mercado v. Board of Election Supervisors,[8]
it was contended that
COMELEC Resolution No. 2499 is null and void because: (a) it
prescribes a separate set of rules for the election of the SK
Chairman different from and inconsistent with that set forth in
the Omnibus Election Code, thereby contravening Section 2,
Article 1 of the said Code which explicitly provides that it shall
govern all elections of public officers; and, (b) it constitutes a
total, absolute, and complete abdication by the COMELEC of its
constitutionally and statutorily mandated duty to enforce and
administer all election laws as provided for in Section 2(1), Article
IX-C of the Constitution; Section 52, Article VIII of the Omnibus
Election Code; and Section 2, Chapter 1, Subtitle C, Title 1, Book
V of the 1987 Administrative Code.[9]
Rejecting this contention, this Court, through Justice Davide,
held:
Section 252 of the Omnibus Election Code and that portion of
paragraph (2), Section 2, Article IX-C of the Constitution on the
COMELECs exclusive appellate jurisdiction over contests
involving elective barangay officials refer to the elective
barangay officials under the pertinent laws in force at the time
the Omnibus Election Code was enacted and upon the
ratification of the Constitution. That law was B.P. Blg. 337,
otherwise known as the Local Government Code, and the
elective barangay officials referred to were the punong barangay
and the six sangguniang bayan members. They were to be
elected by those qualified to exercise the right of suffrage. They
are also the same officers referred to by the provisions of the
Omnibus Election Code of the Philippines on election of
barangay officials. Metropolitan and municipal trial courts had
exclusive original jurisdiction over contests relating to their
election. The decisions of these courts were appealable to the
Regional Trial Courts.
....
In the light of the foregoing, it is indisputable that contests
involving elections of SK (formerly KB) officials do not fall within
Section 252 of the Omnibus Election Code and paragraph 2,
Section 2, Article IX-C of the Constitution and that no law in
effect prior to the ratification of the Constitution had made the
SK chairman an elective barangay official. His being an ex-officio
member of the sangguniang barangay does not make him one
for the law specifically provides who are its elective members,
viz., the punong barangay and the seven regular sangguniang
barangay members who are elected at large by those who are
qualified to exercise the right of suffrage under Article V of the
Constitution and who are duly registered voters of the
barangay.[10]
The choice of the DILG for the task in question was appropriate
and was in line with the legislative policy evident in several
statutes. Thus, P.D. No. 684 (April 15, 1975), in creating
Kabataang Barangays in every barangay throughout the country,
provided in 6 that the Secretary of Local Government and
Community Development shall promulgate such rules and
regulations as may be deemed necessary to effectively
implement the provisions of this Decree. Again, in 1985
Proclamation No. 2421 of the President of the Philippines, in
calling for the general elections of the Kabataang Barangay on
July 13-14, 1985, tasked the then Ministry of Local Government,
the Ministry of Education, Culture and Sports, and the
Commission on Elections to assist the Kabataang Barangay in the
conduct of the elections. On the other hand, in a Memorandum
Circular dated March 7, 1988, President Corazon C. Aquino
directed the Secretary of Local Government to issue the
necessary rules and regulations for effecting the representation
of the Kabataang Barangay, among other sectors, in the
legislative bodies of the local government units.
The role of the COMELEC in the 1992 elections for SK officers was
by no means inconsequential. DILG supervision was to be
exercised within the framework of detailed and comprehensive
rules embodied in Resolution No. 2499 of the COMELEC. What
was left to the DILG to perform was the enforcement of the rules.
Second. It is contended that, in its resolution in question, the
COMELEC did not name the barangays which, because they had
conducted kabataang barangay elections between January 1,
1988 and January 1, 1992, were not included in the SK elections
to be held on December 4, 1992. That these barangays were
precisely to be determined by the DILG is, however, fairly
inferable from the authority given to the DILG to supervise the
conduct of the elections. Since 532(d) provided for kabataang
barangay officials whose term of office was extended beyond
1992, the authority to supervise the conduct of elections in that
year must necessarily be deemed to include the authority to
determine which kabataang barangay would not be included in
the 1992 elections.
The authority granted was nothing more than the ascertainment
of a fact, namely, whether between January 1, 1988 and January
1, 1992 elections had been held in a given kabataang barangay.
If elections had been conducted, then no new elections had to
be held on December 4, 1992 since by virtue of 532(d) the term
of office of the kabataang barangay officials so elected was
extended correspondingly to coincide with the term of office of
those elected under [the Local Government Code of 1991]. In
doing this, the Secretary of Interior and Local Government was
to act merely as the agent of the legislative department, to
determine and declare the event upon which its expressed will
was to take effect.[11] There was no undue delegation of
legislative power but only of the discretion as to the execution of
a law. That this is constitutionally permissible is the teaching of
our cases.[12]
Third. Respondents claim, however, that the May 26, 1990 KB
elections in Manila were void because (a) they were called at the
instance of then Mayor Gemiliano C. Lopez who did not have
authority to do so and (b) it was not held under COMELEC
supervision.
The 1990 elections for the Kabataang Barangay were called by
then Manila Mayor Gemiliano C. Lopez, Jr., who in his Executive
Order No. 21 dated April 25, 1990 stated:
WHEREAS, the Kabataang Barangay as an organization provided
for under Batas Pambansa Bilang 337, has been practically
dormant since the advent of the present national administration;
WHEREAS, there is an urgent need to involve the youth in the
affairs and undertakings of the government to ensure the
participation of all sectors of our population in the task of nation
building;
WHEREAS, the last elections for the Kabataang Barangay officers
were held in November 1985 yet, which is over their three years
term of office;
WHEREAS, most of the present crop of KB officers are way past
the age limit provided for under the law;
....
The elections were actually held on May 26, 1990 in the 897
barangays of Manila. Later, on June 30, 1990, KB City Federation
elections were conducted.
It was precisely to foreclose any question regarding the validity
of KB elections held in the aftermath of the EDSA revolution and
upon the effectivity of the new Local Government Code that the
exception clause of 532(d) was inserted. The proceedings of the
Bicameral Conference Committee which drafted the Code show
the following:[13]
CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o
chapter o section, ha!
HON. LINA: . . .
Page 436, lines 13 to 14 delete within eighteen months prior to
December 31, 1990, and in lieu thereof, insert from 1988 up to
the effectivity of the Code. The rationale. . . .
CHAIRMAN DE PEDRO: How should it be read?
HON. LINA: It will read as follows: Provided however, that the
Local Government Units which have conducted elections for the
Kabataang Barangay as provided for, in Batas Pambansa Bilang
337, up to the effectivity. . . .
CHAIRMAN DE PEDRO: So, any deletion from the word within,
ha, up to. . . .
HON. LINA: Remove the words, the phrase, within eighteen
months prior to December 31, 1990, and insert from 1988 up to
the effectivity of this Code.
CHAIRMAN DE PEDRO: From?
HON. LINA: From 1988 up to the effectivity of this Code. Kasi
meron nang mga election, eh, na ginawa, eh. There are five
thousand barangays, based on the record of the DILG, out of
forty thousand, imagine that, na nag-conduct na ng election nila
based on the KB Constitution and By-Laws, and theyre sitting
already, now if we do not recognize that, mag[ka]karoon sila ng
question.
CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.
Section 532(d) may thus be deemed to be a curative law.
Curative laws, which in essence are retrospective in effect, are
enacted to validate acts done which otherwise would be invalid
under existing laws, by considering them as having complied
with the existing laws. Such laws are recognized in this
jurisdiction.[14]
Fourth. It is finally contended that the exemption of the
barangays of the City of Manila from the requirement to hold
elections for SK officers on December 4, 1992 would deny the
youth voters in those barangays of the equal protection of laws.
Respondents claim that only in the barangays in the City of
Manila, which then numbered 897, were elections for SK not
held in 1992 on the ground that between January 1, 1988 and
January 1, 1992 there had already been SK elections held, when,
according to petitioners own evidence, during that period, SK
elections had actually been conducted in 5,000 barangays.
Whether this claim is true cannot be ascertained from the
records of this case. Merely showing that there were 5,000
barangays which similarly held KB elections between January 1,
1988 and January 1, 1992 does not prove that despite that fact
these same barangays were permitted to hold elections on
December 4, 1992. For one thing, according to the Manila
Bulletin issue of November 18, 1992 (p. 9), 568 barangays in the
Province of Bulacan did not have SK elections on December 4,
1992 either, because they already had elections between
January 1, 1988 and January 1, 1992. For another, even assuming
that only barangays in Manila were not permitted to hold SK
elections on December 4, 1992 while the rest of the 5,000
barangays were allowed even if KB elections had already been
held there before, this fact does not give the youth voters in the
897 Manila barangays ground for complaint because what the
other barangays did was contrary to law. There is no
discrimination here.
In People v. Vera[15] this Court struck down the Probation Law
because it permitted unequal application of its benefits by
making its applicability depend on the decision of provincial
governments to appropriate or not to appropriate funds for the
salaries of probation officers, with the result that those not
disposed to allow the benefits of probations to be enjoyed by
their inhabitants could simply omit to provide for the salaries of
probation officers. The difference between that case and the one
at bar lies in the fact that what youth voters in the other
barangays might have been allowed was not a right which was
denied to youth voters in Manila. If those barangays were not
entitled to have SK elections on December 4, 1992 but
nevertheless were allowed to have such elections, that fact did
not mean those in Manila should similarly have been allowed to
conduct elections on December 4, 1992 because the fact was
that they already had their own, just two years before on May
26, 1990. Respondents equal protection argument violates the
dictum that one wrong does not make another wrong right.
WHEREFORE, the decision of the Regional Trial Court of Manila,
Branch 36 is REVERSED and the case filed against petitioner by
private respondents is DISMISSED.
SO ORDERED.
G.R. No. 95237-38 September 13, 1991
DAVAO CITY WATER DISTRICT, CAGAYAN DE ORO CITY WATER
DISTRICT, METRO CEBU WATER DISTRICT, ZAMBOANGA CITY
WATER DISTRICT, LEYTE METRO WATER DISTRICT, BUTUAN CITY
WATER DISTRICT, CAMARINES NORTE WATER DISTRICT, LAGUNA
WATER DISTRICT, DUMAGUETE CITY WATER DISTRICT, LA UNION
WATER DISTRICT, BAYBAY WATER DISTRICT, METRO LINGAYEN
WATER DISTRICT, URDANETA WATER DISTRICT, COTABATO CITY
WATER DISTRICT, MARAWI WATER DISTRICT, TAGUM WATER
DISTRICT, DIGOS WATER DISTRICT, BISLIG WATER DISTRICT, and
MECAUAYAN WATER DISTRICT, petitioners,
vs.
CIVIL SERVICE COMMISSION, and COMMISSION ON AUDIT,
respondents.
Rodolfo S. De Jesus for petitioners.
Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-
Tingzon for CSC.
MEDIALDEA, J.:p
Whether or not the Local Water Districts formed and created
pursuant to the provisions of Presidential Decree No. 198, as
amended, are government-owned or controlled corporations
with original charter falling under the Civil Service Law and/or
covered by the visitorial power of the Commission on Audit is the
issue which the petitioners entreat this Court, en banc, to shed
light on.
Petitioners are among the more than five hundred (500) water
districts existing throughout the country formed pursuant to the
provisions of Presidential Decree No. 198, as amended by
Presidential Decrees Nos. 768 and 1479, otherwise known as the
"Provincial Water Utilities Act of 1973."
Presidential Decree No. 198 was issued by the then President
Ferdinand E. Marcos by virtue of his legislative power under
Proclamation No. 1081. It authorized the different local
legislative bodies to form and create their respective water
districts through a resolution they will pass subject to the
guidelines, rules and regulations therein laid down. The decree
further created and formed the "Local Water Utilities
Administration" (LWUA), a national agency attached to the
National Economic and Development Authority (NEDA), and
granted with regulatory power necessary to optimize public
service from water utilities operations.
The respondents, on the other hand, are the Civil Service
Commission (CSC) and the Commission on Audit (COA), both
government agencies and represented in this case by the
Solicitor General.
On April 17, 1989, this Court ruled in the case of Tanjay Water
District v. Gabaton, et al. (G.R. No. 63742, 172 SCRA 253):
Significantly, Article IX (B), Section 2(1) of the 1987 Constitution
provides that the Civil Service embraces all branches,
subdivisions, instrumentalities, and agencies of the government,
including government-owned and controlled corporations with
original charters. Inasmuch as PD No. 198, as amended, is the
original charter of the petitioner, Tanjay Water District, and
respondent Tarlac Water District and all water districts in the
country, they come under the coverage of the Civil Service Law,
rules and regulations. (Sec. 35, Art. VIII and Sec. 37, Art. IX of PD
No. 807).
As an offshoot of the immediately cited ruling, the CSC. issued
Resolution No. 90-575, the dispositive portion of which reads:
NOW THEREFORE, in view of all the foregoing, the Commission
resolved, as it hereby resolves to rule that Local Water Districts,
being quasi-public corporations created by law to perform public
services and supply public wants, the matter of hiring and firing
of its officers and employees should be governed by the Civil
Service Law, rules and regulations. Henceforth, all appointments
of personnel of the different local water districts in the country
shall be submitted to the Commission for appropriate action.
(Rollo. p. 22).
However, on May 16, 1990, in G.R. No. 85760, entitled "Metro
Iloilo Water District v. National Labor Relations Commission, et
al.," the Third Division of this Court ruled in a minute resolution:
xxx xxx xxx
Considering that PD 198 is a general legislation empowering
and/or authorizing government agencies and entities to create
water districts, said PD 198 cannot be considered as the charter
itself creating the Water District. Public respondent NLRC did not
commit any grave abuse of discretion in holding that the
operative act, that created the Metro Iloilo Water District was
the resolution of the Sangguniang Panglunsod of Iloilo City.
Hence, the employees of Water Districts are not covered by Civil
Service Laws as the latter do (sic) not have original charters.
In adherence to the just cited ruling, the CSC suspended the
implementation of Resolution No. 90-575 by issuing Resolution
No. 90-770 which reads:
xxx xxx xxx
NOW, THEREFORE, in view of all the foregoing, the Commission
resolved to rule, as it hereby rules, that the implementation of
CSC. Resolution No. 575 dated June 27, 1990 be deferred in the
meantime pending clarification from the Supreme Court are
regards its conflicting decisions in the cases of Tanjay Water
District v. Gabaton and Metro Iloilo Water District v. National
Labor Relations Commission. (p. 26, Rollo)
In the meanwhile, there exists a divergence of opinions between
COA on one hand, and the (LWUA), on the other hand, with
respect to the authority of COA to audit the different water
districts.
COA opined that the audit of the water districts is simply an act
of discharging the visitorial power vested in them by law (letter
of COA to LWUA dated August 13, 1985, pp. 29-30, Rollo).
On the other hand, LWUA maintained that only those water
districts with subsidies from the government fall within the
COA's jurisdiction and only to the extent of the amount of such
subsidies, pursuant to the provision of the Government Auditing
Code of the Phils.
It is to be observed that just like the question of whether the
employees of the water districts falls under the coverage of the
Civil Service Law, the conflict between the water districts and the
COA is also dependent on the final determination of whether or
not water districts are government-owned or controlled
corporations with original charter. The reason behind this is Sec.
2(1), Article IX-D of the 1987 constitution which reads:
Sec. 2(1) The Commission on Audit shall have the power,
authority, and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or
uses of funds and property, owned or held in trust by, or
pertaining to the Government, or any of its subdivisions,
agencies or instrumentalities, including government-owned or
controlled corporations with original charters, and on a post
audit basis. (emphasis supplied)
Petitioners' main argument is that they are private corporations
without original charter, hence they are outside the jurisdiction
of respondents CSC and COA. Reliance is made on the Metro
Iloilo case which declared petitioners as quasi-public
corporations created by virtue of PD 198, a general legislation
which cannot be considered as the charter itself creating the
water districts. Holding on to this ruling, petitioners contend that
they are private corporations which are only regarded as quasi-
public or semi-public because they serve public interest and
convenience and that since PD 198 is a general legislation, the
operative act which created a water district is not the said decree
but the resolution of the sanggunian concerned.
After a fair consideration of the parties' arguments coupled with
a careful study of the applicable laws as well as the constitutional
provisions involved, We rule against the petitioners and reiterate
Our ruling in Tanjay case declaring water districts government-
owned or controlled corporations with original charter.
As early as Baguio Water District v. Trajano, et al., (G.R. No.
65428, February 20, 1984, 127 SCRA 730), We already ruled that
a water district is a corporation created pursuant to a special law
— P.D. No. 198, as amended, and as such its officers and
employees are covered by the Civil Service Law.
In another case (Hagonoy Water District v. NLRC, G.R. No. 81490,
August 31, 1988, 165 SCRA 272), We ruled once again that local
water districts are quasi-public corporations whose employees
belong to the Civil Service. The Court's pronoucement in this
case, as extensively quoted in the Tanjay case, supra, partly
reads:
"The only question here is whether or not local water districts
are governmkent owned or controlled corporations whose
employees are subject to the provisions of the Civil Service Law.
The Labor Arbiter asserted jurisdiction over the alleged illegal
dismissal of private respondent Villanueva by relying on Section
25 of Presidential decree No. 198, known as the Provincial Water
Utilities Act of 1973" which went onto effect in 25 May 1973, and
which provides as follows:
Exemption from Civil Service. — The district and its employees,
being engaged in a proprietary function, are hereby exempt from
the provisions of the Civil Service Law. Collective Bargaining shall
be available only to personnel below supervisory levels:
Provided, however, That the total of all salaries, wages
emoluments, benefits or other compensation paid to all
employees in any month shall not exceed fifty percent (50%) of
average net monthy revenue. Said net revenue representing
income from water sales and sewerage service charges, less pro-
rata share of debt service and expenses for fuel or energy for
pumping during the preceding fiscal year.
The Labor Arbiter failed to take into accout the provisions of
Presidential Decree No. 1479, which went into effect on 11 June
1978, P.D. No. 1479, wiped away Section 25 of PD 198 quoted
above, and Section 26 of PD 198 was renumbered as Section 25
in the following manner:
Section 26 of the same decree PD 198 is hereby amended to read
as Section 25 as follows:
Section 25. Authorization. — The district may exercise all
the powers which are expressly granted by this Title or which are
necessarily implied from or incidental to the powers and
purposes herein stated. For the purpose of carrying out the
objectives of this Act, a district is hereby granted the power of
eminent domain, the exercise thereof shall, however, be subject
to review by the Administration.
Thus, Section 25 of PD 198 exempting the employees of water
districts from the application of the Civil Service Law was
removed from the statute books:
xxx xxx xxx
We grant the petition for the following reasons:
1. Section 25 of PD No. 198 was repealed by Section 3 of PD No.
1479; Section 26 of PD No. 198 was amended ro read as Sec. 25
by Sec. 4 of PD No. 1479. The amendatory decree took effect on
June 11, 1978.
xxx xxx xxx
3. The BWD is a corporation created pursuant to a special law —
PD No. 198, as amended. As such its officers and employees are
part of the Civil Service (Sec. 1, Art. XII-B, [1973] Constitution; PD
No. 868).
Ascertained from a consideration of the whole statute, PD 198 is
a special law applicable only to the different water districts
created pursuant thereto. In all its essential terms, it is obvious
that it pertains to a special purpose which is intended to meet a
particular set of conditions and cirmcumstances. The fact that
said decree generally applies to all water districts throughout the
country does not change the fact that PD 198 is a special law.
Accordingly, this Court's resolution in Metro Iloilo case declaring
PD 198 as a general legislation is hereby abandoned.
By "government-owned or controlled corporation with original
charter," We mean government owned or controlled
corporation created by a special law and not under the
Corporation Code of the Philippines. Thus, in the case of
Lumanta v. NLRC (G.R. No. 82819, February 8, 1989, 170 SCRA
79, 82), We held:
The Court, in National Service Corporation (NASECO) v. National
Labor Relations Commission, G.R. No 69870, promulgated on 29
November 1988, quoting extensively from the deliberations of
1986 Constitutional Commission in respect of the intent and
meaning of the new phrase "with original character," in effect
held that government-owned and controlled corporations with
original charter refer to corporations chartered by special law as
distinguished from corporations organized under our general
incorporation statute — the Corporations Code. In NASECO, the
company involved had been organized under the general
incorporation statute and was a sbusidiary of the National
Investment Development Corporation (NIDC) which in turn was
a subsidiary of the Philippine National Bank, a bank chartered by
a special statute. Thus, government-owned or controlled
corporations like NASECO are effectively, excluded from the
scope of the Civil Service. (emphasis supplied)
From the foregoing pronouncement, it is clear that what has
been excluded from the coverage of the CSC are those
corporations created pursuant to the Corporation Code.
Significantly, petitioners are not created under the said code, but
on the contrary, they were created pursuant to a special law and
are governed primarily by its provision.
No consideration may thus be given to petitioners' contention
that the operative act which created the water districts are the
resolutions of the respective local sanggunians and that
consequently, PD 198, as amended, cannot be considered as
their charter.
It is to be noted that PD 198, as amended is the source of
authorization and power to form and maintain a district. Section
6 of said decree provides:
Sec. 6. Formation of District. — This Act is the source of
authorization and power to form and maintain a district. Once
formed, a district is subject to the provisions of this Act and not
under the jurisdiction of any political subdivision, . . . .
Moreover, it must be observed that PD 198, contains all the
essential terms necessary to constitute a charter creating a
juridical person. For example, Section 6(a) provides for the name
that will be used by a water district, thus:
Sec. 6. . . . To form a district, the legislative body of any city,
municipality or province shall enact a resolution containing the
following:
a) The name of the local water district, which shall include the
name of the city, municipality, or province, or region thereof,
their terms of office:
served by said system, followed by the words "Water District."

Sec. 11. Term of Office. — Of the five initial directors of each

It also prescribes for the numbers and qualifications of the
newly formed district, two shall be appointed for a maximum
members of the Board of Directors:
term of two years, two for a maximum term of four years, and
one for a maximum term of six years. Terms of office of all
directors in a given district shall be such that the term of at least
Sec. 8. Number and Qualification. — The Board of Directors of
one director, but not more then two, shall expire on December
a district shall be composed of five citizens of the Philippines who
31 of each even-numbered year. Regular terms of office after the
are of voting age and residents within the district. One member
initial terms shall be for six years commencing on January 1 of
shall be a representative of civic-oriented service clubs, one
odd-numbered years. Directors may be removed for cause only,
member of representative of professional associations, one
subject to review and approval of the Administration; (as
member a representative of business, commercial or financial
amended by PD 768).
organizations, one member a representative of educational
institutions and one member a representative of women's
organization. No public official shall serve as director. Provided,
the manner of filling up vacancies:
however, that if the district has availed of the financial assistance
of the Administration, the Administration may appoint any of its
personnel to sit in the board of directors with all the rights and
privileges appertaining to a regular member for such period as Sec. 12. Vacancies. — In the event of a vacancy in the board of
the indebtedness remains unpaid in which case the board shall directors occurring more than six months before expiration of
be composed of six members; (as amended by PDs Nos. 768 and any director's term, the remaining directors shall within 30 days,
1479). serve notice to or request the secretary of the district for
nominations and within 30 days, thereafter a list of nominees
shall be submitted to the appointing authority for his
appointment of a replacement director from the list of
the manner of their appointment and nominations;
nominees. In the absence of such nominations, the appointing
authority shall make such appointment. If within 30 days after
submission to him of a list of nominees the appointing authority
Sec. 9. Appointment. — Board members shall be appointed by
fails to make an appointment, the vacancy shall be filled from
the appointing authority. Said appointments shall be made from
such list by a majority vote of the remaining members of the
a list of nominees, if any, submitted pursuant to Section 10. If no
Board of Directors constituting a quorum. Vacancies occurring
nominations are submitted, the appointing authority shall
within the last six months of an unexpired term shall also be filled
appoint any qualified person of the category to the vacant
by the Board in the above manner. The director thus appointed
position;
shall serve the unexpired term only; (as amended by PD 768).

Sec.10. Nominations. — On or before October 1 of each even

and the compensation and personal liability of the members of
numbered year, the secretary of the district shall contact each
the Board of Directors:
known organization, association, or institution being
represented by the director whose term will expire on December
31 and solicit nominations from these organizations to fill the
Sec. 13. Compensation. — Each director shall receive a per
position for the ensuing term. One nomination may be
diem, to be determined by the board, for each meeting of the
submitted in writing by each such organization to the Secretary
board actually attended by him, but no director shag receive per
of the district on or before November 1 of such year: This list of
diems in any given month in excess of the equivalent of the total
nominees shall be transmitted by the Secretary of the district to
per diems of four meetings in any given month. No director shall
the office of the appointing authority on or before November 15
receive other compensation for services to the district.
of such year and he shall make his appointment from the list
submitted on or before December 15. In the event the
appointing authority fails to make his appointments on or before
December 15, selection shall be made from said list of nominees Any per diem in excess of P50.00 shall be subject to approval of
by majority vote of the seated directors of the district the Administration (as amended by PD 768).
constituting a quorum. Initial nominations for all five seats of the
board shall be solicited by the legislative body or bodies at the
time of adoption of the resolution forming the district. Thirty Sec. 14. Personal Liability. — No director may be held to be
days thereafter, a list of nominees shall be submitted to the personally liable for any action of the district.
provincial governor in the event the resolution forming the
district is by a provincial board, or the mayor of the city or
municipality in the event the resolution forming the adoption of Noteworthy, the above quoted provisions of PD 198, as
the district is by the city or municipal board of councilors, who amended, are similar to those which are actually contained in
shall select the initial directors therefrom within 15 days after other corporate charters. The conclusion is inescapable that the
receipt of such nominations; said decree is in truth and in fact the charter of the different
water districts for it clearly defines the latter's primary purpose
and its basic organizational set-up. In other words, PD 198, as
amended, is the very law which gives a water district juridical
personality. While it is true that a resolution of a local sanggunian
is still necessary for the final creation of a district, this Court is of
the opinion that said resolution cannot be considered as its
charter, the same being intended only to implement the
provisions of said decree. In passing a resolution forming a water
district, the local sanggunian is entrusted with no authority or
discretion to grant a charter for the creation of a private
corporation. It is merely given the authority for the formation of
a water district, on a local option basis, to be exercised under
and in pursuance of PD 198.
More than the aforequoted provisions, what is of important
interest in the case at bar is Section 3, par. (b) of the same decree
which reads:
Sec. 3(b). Appointing authority. — The person
empowered to appoint the members of the Board of Directors
of a local water district, depending upon the geographic
coverage and population make-up of the particular district. In
the event that more than seventy-five percent of the total active
water service connections of a local water districts are within the
boundary of any city or municipality, the appointing authority
shall be the mayor of that city or municipality, as the case may
be; otherwise, the appointing authority shall be the governor of
the province within which the district is located: Provided, That
if the existing waterworks system in the city or municipality
established as a water district under this Decree is operated and
managed by the province, initial appointment shall be extended
by the governor of the province. Subsequent appointments shall
be as specified herein.
If portions of more than one province are included within the
boundary of the district, and the appointing authority is to be the
governors then the power to appoint shall rotate between the
governors involved with the initial appointments made by the
governor in whose province the greatest number of service
connections exists (as amended by PD 768).
The above-quoted section definitely sets to naught petitioners'
contention that they are private corporations. It is clear
therefrom that the power to appoint the members who will
comprise the Board of Directors belongs to the local executives
of the local subdivision units where such districts are located. In
contrast, the members of the Board of Directors or trustees of a
private corporation are elected from among the members and
stockholders thereof. It would not be amiss to emphasize at this
point that a private corporation is created for the private
purpose, benefit, aim and end of its members or stockholders.
Necessarily, said members or stockholders should be given a free
hand to choose those who will compose the governing body of
their corporation. But this is not the case here and this clearly
indicates that petitioners are definitely not private corporations.
The foregoing disquisition notwithstanding, We are, however,
not unaware of the serious repercussion this may bring to the
thousands of water districts' employees throughout the country
who stand to be affected because they do not have the
necessary civil service eligibilities. As these employees are
equally protected by the constitutional guarantee to security of
tenure, We find it necessary to rule for the protection of such
right which cannot be impaired by a subsequent ruling of this
Court. Thus, those employees who have already acquired their
permanent employment status at the time of the promulgation
of this decision cannot be removed by the mere reason that they
lack the necessary civil service eligibilities.
ACCORDINGLY, the petition is hereby DISMISSED. Petitioners are
declared "government-owned or controlled corporations with
original charter" which fall under the jurisdiction of the public
respondents CSC and COA.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Padilla,
Griño-Aquino, Regalado and Davide, Jr., JJ., concur.
Gutierrez, Jr., Feliciano and Sarmiento, JJ., are on leave
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION
ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for
petitioner.
PARAS, J.:
In 1991, Christian Monsod was appointed as the Chairman of the
Commission on Elections. His appointment was affirmed by the
Commission on Appointments. Monsod’s appointment was
opposed by Renato Cayetano on the ground that he does not
qualify for he failed to meet the Constitutional requirement
which provides that the chairman of the COMELEC should have
been engaged in the practice law for at least ten years.
Monsod’s track record as a lawyer:
Passed the bar in 1960 with a rating of 86.55%.
Immediately after passing, worked in his father’s law firm for one
year.
Thereafter, until 1970, he went abroad where he had a degree
in economics and held various positions in various foreign
corporations.
In 1970, he returned to the Philippines and held executive jobs
for various local corporations until 1986.
In 1986, he became a member of the Constitutional Commission.
ISSUE: Whether or not Monsod qualifies as chairman of the
COMELEC. What constitutes practice of law?
HELD: Yes. Atty. Monsod’s past work experiences as a lawyer-
economist, a lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts, and a lawyer-
legislator of both the rich and the poor — verily more than satisfy
the constitutional requirement — that he has been engaged in
the practice of law for at least ten years.
As noted by various authorities, the practice of law is not limited
to court appearances. The members of the bench and bar and
the informed laymen such as businessmen, know that in most
developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General
practitioners of law who do both litigation and non-litigation
work also know that in most cases they find themselves spending
more time doing what is loosely described as business counseling
than in trying cases. In the course of a working day the average
general practitioner wig engage in a number of legal tasks, each
involving different legal doctrines, legal skills, legal processes,
legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice wig usually
perform at least some legal services outside their specialty. By
no means will most of this work involve litigation, unless the
lawyer is one of the relatively rare types — a litigator who
specializes in this work to the exclusion of much else. Instead,
the work will require the lawyer to have mastered the full range
of traditional lawyer skills of client counseling, advice-giving,
document drafting, and negotiation.
Justice Padilla dissenting:
Monsod did not practice law. Justice Padilla emphasized the
following criteria in determining what constitutes practice of
law:
1. Habituality. The term “practice of law” implies customarily or
habitually holding one’s self out to the public as a lawyer (People
vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98
N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S.
v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a manifestation with
the Supreme Court informing it of his intention to practice law in
all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in
frequent or customary action, a succession of acts of the same
kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan,
864).
2. Compensation. Practice of law implies that one must have
presented himself to be in the active and continued practice of
the legal profession and that his professional services are
available to the public for compensation, as a service of his
livelihood or in consideration of his said services. (People v.
Villanueva, supra). Hence, charging for services such as
preparation of documents involving the use of legal knowledge
and skill is within the term “practice of law” (Ernani Paño, Bar
Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People
v. People’s Stockyards State Bank, 176 N.B. 901) and, one who
renders an opinion as to the proper interpretation of a statute,
and receives pay for it, is to that extent, practicing law (Martin,
supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co.,
290 N.Y.S. 462) If compensation is expected, all advice to clients
and all action taken for them in matters connected with the law;
are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor,
94A-L.R. 356-359)
3. Application of law, legal principle, practice or procedure which
calls for legal knowledge, training and experience is within the
term “practice of law”. (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law
presupposes the existence of lawyer-client relationship. Hence,
where a lawyer undertakes an activity which requires knowledge
of law but involves no attorney-client relationship, such as
teaching law or writing law books or articles, he cannot be said
to be engaged in the practice of his profession or a lawyer
(Agpalo, Legal Ethics, 1989 ed., p. 30).
Monsod did not habitually practice law. It may be granted that
he performed activities which are related to the practice of law
like drafting legal documents and giving legal advice, but he only
did so as isolated incidents.
Justice Gutierrez dissenting:
Monsod did not practice law save for the one year he spent in
his father’s law office. The Chairman of the COMELEC should
have engaged in the practice of law for at least ten years. The
deliberate choice of words shows that the practice envisioned is
active and regular, not isolated, occasional, accidental,
intermittent, incidental, seasonal, or extemporaneous. To be
“engaged” in an activity for ten years requires committed
participation in something which is the result of one’s decisive
choice. It means that one is occupied and involved in the
enterprise; one is obliged or pledged to carry it out with intent
and attention during the ten-year period.
What kind of Judges or Justices will we have if their main
occupation is selling real estate, managing a business
corporation, serving in fact-finding committee, working in
media, or operating a farm with no active involvement in the law,
whether in Government or private practice, except that in one
joyful moment in the distant past, they happened to pass the bar
examinations?

There is nothing in Monsod’s track record which will show that
he Monsod has given the law enough attention or a certain
degree of commitment and participation as would support in all
sincerity and candor the claim of having engaged in its practice
for at least ten years. Instead of working as a lawyer, he has
lawyers working for him. Instead of giving receiving that legal
advice of legal services, he was the one adviced and those
services as an executive but not as a lawyer.
G.R. No. 155336 July 21, 2006
COMMISSION ON HUMAN RIGHTS EMPLOYEES' ASSOCIATION
(CHREA) Represented by its President, MARCIAL A. SANCHEZ,
JR., petitioner,
vs.
COMMISSION ON HUMAN RIGHTS, respondent.
RESOLUTION
CHICO-NAZARIO, J.:
FACTS: Congress passed RA 8522, otherwise known as the
General Appropriations Act of 1998. It provided for Special
Provisions Applicable to All Constitutional Offices Enjoying Fiscal
Autonomy. On the strength of these special provisions, the CHR
promulgated Resolution No. A98-047 adopting an upgrading
and reclassification scheme among selected positions in the
Commission.
By virtue of Resolution No. A98-062, the CHR “collapsed” the
vacant positions in the body to provide additional source of
funding for said staffing modification.
The CHR forwarded said staffing modification and upgrading
scheme to the DBM with a request for its approval, but the
then DBM secretary denied the request.
In light of the DBM’s disapproval of the proposed personnel
modification scheme, the CSC-National Capital Region Office,
through a memorandum, recommended to the CSC-Central
Office that the subject appointments be rejected owing to the
DBM’s disapproval of the plantilla reclassification.
Meanwhile, the officers of petitioner CHR-employees
association (CHREA) in representation of the rank and file
employees of the CHR, requested the CSC-Central Office to
affirm the recommendation of the CSC-Regional Office.
The CSC-Central Office denied CHREA’s request in a Resolution
and reversedthe recommendation of the CSC-Regional Office
that the upgrading scheme be censured. CHREA filed a motion
for reconsideration, but the CSC-Central Office denied the
same.
CHREA elevated the matter to the CA, which affirmed the
pronouncement of the CSC-Central Office and upheld the
validity of the upgrading, retitling, and reclassification scheme
in the CHR on the justification that such action is within the
ambit of CHR’s fiscal autonomy.
ISSUE: Can the CHR validly implement an upgrading,
reclassification, creation, and collapsing of plantilla positions in
the Commission without the prior approval of the Department
of Budget and Management?
HELD: the petition is GRANTED, the Decision of the CA and its
are hereby REVERSED and SET ASIDE. The ruling CSC-National
Capital Region is REINSTATED. The 3 CHR Resolutions, without
the approval of the DBM are disallowed.
1. RA 6758, An Act Prescribing a Revised Compensation and
Position Classification System in the Government and For Other
Purposes, or the Salary Standardization Law, provides that it is
the DBM that shall establish and administer a unified
Compensation and Position Classification System.
The disputation of the CA that the CHR is exempt from the long
arm of the Salary Standardization Law is flawed considering that
the coverage thereof encompasses the entire gamut of
government offices, sans qualification.
This power to “administer” is not purely ministerial in character
as erroneously held by the CA. The word to administer means
to control or regulate in behalf of others; to direct or
superintend the execution, application or conduct of; and to
manage or conduct public affairs, as to administer the
government of the state.
2. The regulatory power of the DBM on matters of
compensation is encrypted not only in law, but in jurisprudence
as well. In the recent case of PRA v. Buñag, this Court ruled that
compensation, allowances, and other benefits received by PRA
officials and employees without the requisite approval or
authority of the DBM are unauthorized and irregular
In Victorina Cruz v. CA , we held that the DBM has the sole
power and discretion to administer the compensation and
position classification system of the national government.
In Intia, Jr. v. COA the Court held that although the charter of
the PPC grants it the power to fix the compensation and
benefits of its employees and exempts PPC from the coverage
of the rules and regulations of the Compensation and Position
Classification Office, by virtue of Section 6 of P.D. No. 1597, the
compensation system established by the PPC is, nonetheless,
subject to the review of the DBM.
(It should be emphasized that the review by the DBM of any
PPC resolution affecting the compensation structure of its
personnel should not be interpreted to mean that the DBM can
dictate upon the PPC Board of Directors and deprive the latter
of its discretion on the matter. Rather, the DBM’s function is
merely to ensure that the action taken by the Board of
Directors complies with the requirements of the law,
specifically, that PPC’s compensation system “conforms as
closely as possible with that provided for under R.A. No. 6758.”
)
3. As measured by the foregoing legal and jurisprudential
yardsticks, the imprimatur of the DBM must first be sought
prior to implementation of any reclassification or upgrading of
positions in government. This is consonant to the mandate of
the DBM under the RAC of 1987, Section 3, Chapter 1, Title
XVII, to wit:
SEC. 3. Powers and Functions. – The Department of Budget and
Management shall assist the President in the preparation of a
national resources and expenditures budget, preparation,
execution and control of the National Budget, preparation and
maintenance of accounting systems essential to the budgetary
process, achievement of more economy and efficiency in the
management of government operations, administration of
compensation and position classification systems, assessment
of organizational effectiveness and review and evaluation of
legislative proposals having budgetary or organizational
implications.
Irrefragably, it is within the turf of the DBM Secretary to
disallow the upgrading, reclassification, and creation of
additional plantilla positions in the CHR based on its finding that
such scheme lacks legal justification.
Notably, the CHR itself recognizes the authority of the DBM to
deny or approve the proposed reclassification of positions as
evidenced by its three letters to the DBM requesting approval
thereof. As such, it is now estopped from now claiming that the
nod of approval it has previously sought from the DBM is a
superfluity
4. The CA incorrectly relied on the pronouncement of the CSC-
Central Office that the CHR is a constitutional commission, and
as such enjoys fiscal autonomy.
Palpably, the CA’s Decision was based on the mistaken premise
that the CHR belongs to the species of constitutional
commissions. But the Constitution states in no uncertain terms
that only the CSC, the COMELEC, and the COA shall be tagged
as Constitutional Commissions with the appurtenant right to
fiscal autonomy.
Along the same vein, the Administrative Code, on Distribution
of Powers of Government, the constitutional commissions shall
include only the CSC, the COMELEC, and the COA, which are
granted independence and fiscal autonomy. In contrast,
Chapter 5, Section 29 thereof, is silent on the grant of similar
powers to the other bodies including the CHR. Thus:
SEC. 24. Constitutional Commissions. – The Constitutional
Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission
on Audit.
SEC. 26. Fiscal Autonomy. – The Constitutional Commissions
shall enjoy fiscal autonomy. The approved annual
appropriations shall be automatically and regularly released.
SEC. 29. Other Bodies. – There shall be in accordance with the
Constitution, an Office of the Ombudsman, a Commission on
Human Rights, and independent central monetary authority,
and a national police commission. Likewise, as provided in the
Constitution, Congress may establish an independent economic
and planning agency.
From the 1987 Constitution and the Administrative Code, it is
abundantly clear that the CHR is not among the class of
Constitutional Commissions. As expressed in the oft-repeated
maxim expressio unius est exclusio alterius, the express
mention of one person, thing, act or consequence excludes all
others. Stated otherwise, expressium facit cessare tacitum –
what is expressed puts an end to what is implied.
Nor is there any legal basis to support the contention that the
CHR enjoys fiscal autonomy. In essence, fiscal autonomy entails
freedom from outside control and limitations, other than those
provided by law. It is the freedom to allocate and utilize funds
granted by law, in accordance with law, and pursuant to the
wisdom and dispatch its needs may require from time to
time.22 In Blaquera v. Alcala and Bengzon v. Drilon,23 it is
understood that it is only the Judiciary, the CSC, the COA, the
COMELEC, and the Office of the Ombudsman, which enjoy fiscal
autonomy.
Neither does the fact that the CHR was admitted as a member
by the Constitutional Fiscal Autonomy Group (CFAG) ipso facto
clothed it with fiscal autonomy. Fiscal autonomy is a
constitutional grant, not a tag obtainable by membership.
We note with interest that the special provision under Rep. Act
No. 8522, while cited under the heading of the CHR, did not
specifically mention CHR as among those offices to which the
special provision to formulate and implement organizational
structures apply, but merely states its coverage to include
Constitutional Commissions and Offices enjoying fiscal
autonomy
All told, the CHR, although admittedly a constitutional creation
is, nonetheless, not included in the genus of offices accorded
fiscal autonomy by constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys fiscal
autonomy, we share the stance of the DBM that the grant of
fiscal autonomy notwithstanding, all government offices must,
all the same, kowtow to the Salary Standardization Law. We are
of the same mind with the DBM on its standpoint, thus-
Being a member of the fiscal autonomy group does not vest the
agency with the authority to reclassify, upgrade, and create
positions without approval of the DBM. While the members of
the Group are authorized to formulate and implement the
organizational structures of their respective offices and
determine the compensation of their personnel, such authority
is not absolute and must be exercised within the parameters of
the Unified Position Classification and Compensation System
established under RA 6758 more popularly known as the
Compensation Standardization Law.
5. The most lucid argument against the stand of respondent,
however, is the provision of Rep. Act No. 8522 “that the
implementation hereof shall be in accordance with salary rates,
allowances and other benefits authorized under compensation
standardization laws.”26
NOTES:
1. Respondent CHR sharply retorts that petitioner has no locus
standi considering that there exists no official written record in
the Commission recognizing petitioner as a bona fide
organization of its employees nor is there anything in the
records to show that its president has the authority to sue the
CHR.
On petitioner’s personality to bring this suit, we held in a
multitude of cases that a proper party is one who has sustained
or is in immediate danger of sustaining an injury as a result of
the act complained of. Here, petitioner, which consists of rank
and file employees of respondent CHR, protests that the
upgrading and collapsing of positions benefited only a select
few in the upper level positions in the Commission resulting to
the demoralization of the rank and file employees. This
sufficiently meets the injury test. Indeed, the CHR’s upgrading
scheme, if found to be valid, potentially entails eating up the
Commission’s savings or that portion of its budgetary pie
otherwise allocated for Personnel Services, from which the
benefits of the employees, including those in the rank and file,
are derived.
Further, the personality of petitioner to file this case was
recognized by the CSC when it took cognizance of the CHREA’s
request to affirm the recommendation of the CSC-National
Capital Region Office. CHREA’s personality to bring the suit was
a non-issue in the CA when it passed upon the merits of this
case. Thus, neither should our hands be tied by this technical
concern. Indeed, it is settled jurisprudence that an issue that
was neither raised in the complaint nor in the court below
cannot be raised for the first time on appeal, as to do so would
be offensive to the basic rules of fair play, justice, and due
process.
2. In line with its role to breathe life into the policy behind the
Salary Standardization Law of “providing equal pay for
substantially equal work and to base differences in pay upon
substantive differences in duties and responsibilities, and
qualification requirements of the positions,” the DBM, in the
case under review, made a determination, after a thorough
evaluation, that the reclassification and upgrading scheme
proposed by the CHR lacks legal rationalization.
The DBM expounded that Section 78 of the general provisions
of the General Appropriations Act FY 1998, which the CHR
heavily relies upon to justify its reclassification scheme,
explicitly provides that “no organizational unit or changes in key
positions shall be authorized unless provided by law or directed
by the President.” Here, the DBM discerned that there is no law
authorizing the creation of a Finance Management Office and a
Public Affairs Office in the CHR. Anent CHR’s proposal to
upgrade twelve positions of Attorney VI, SG-26 to Director IV,
SG-28, and four positions of Director III, SG-27 to Director IV,
SG-28, in the Central Office, the DBM denied the same as this
would change the context from support to substantive without
actual change in functions.
This view of the DBM, as the law’s designated body to
implement and administer a unified compensation system, is
beyond cavil. The interpretation of an administrative
government agency, which is tasked to implement a statute is
accorded great respect and ordinarily controls the construction
of the courts. In Energy Regulatory Board v. CA, we echoed the
basic rule that the courts will not interfere in matters which are
addressed to the sound discretion of government agencies
entrusted with the regulation of activities coming under the
special technical knowledge and training of such agencies.
[G.R. No. 142527. March 1, 2001]
ARSENIO ALVAREZ, petitioner, vs. COMMISSION ON ELECTIONS
and LA RAINNE ABAD-SARMIENTO, respondents.
RESOLUTION
QUISUMBING, J.:
This petition for certiorari assails the Resolution of the
Commission on Elections En Banc, denying the Motion for
Reconsideration of herein petitioner and affirming the
Resolution of the Second Division of the COMELEC that
modified the decision dated December 4, 1997 of the
Metropolitan Trial Court, Br. 40, of Quezon City in Election Case
No. 97-684. Said decision declared herein private respondent La
Rainne Abad-Sarmiento the duly elected Punong Barangay of
Barangay Doa Aurora, Quezon City during the May 12, 1997
elections; directed the herein petitioner to vacate and turnover
the office of Punong Barangay to private respondent upon the
finality of the resolution; and directed the Clerk of the
COMELEC to notify the appropriate authorities of the resolution
upon final disposition of this case, in consonance with the
provisions of Section 260 of B.P. Blg. 881 otherwise known as
the Omnibus Election Code, as amended.[1]
The facts of the case are as follows:
On May 12, 1997, petitioner was proclaimed duly elected
Punong Barangay of Doa Aurora, Quezon City. He received 590
votes while his opponent, private respondent Abad-Sarmiento,
obtained 585 votes. Private respondent filed an election protest
claiming irregularities, i.e. misreading and misappreciation of
ballots by the Board of Election Inspectors. After petitioner
answered and the issues were joined, the Metropolitan Trial
Court ordered the reopening and recounting of the ballots in
ten contested precincts. It subsequently rendered its decision
that private respondent won the election. She garnered 596
votes while petitioner got 550 votes after the recount.[2]
On appeal, the Second Division of the COMELEC ruled that
private respondent won over petitioner. Private respondent,
meanwhile, filed a Motion for Execution pending appeal which
petitioner opposed. Both petitioners Motion for
Reconsideration and private respondents Motion for Execution
pending appeal were submitted for resolution. The COMELEC
En Banc denied the Motion for Reconsideration and affirmed
the decision of the Second Division.[3] It granted the Motion for
Execution pending appeal.
Petitioner brought before the Court this petition for Certiorari
alleging grave abuse of discretion on the part of the COMELEC
when:
(1) it did not preferentially dispose of the case;
(2) it prematurely acted on the Motion for Execution pending
appeal; and
(3) it misinterpreted the Constitutional provision that decisions,
final orders, or rulings of the Commission on Election contests
involving municipal and barangay officials shall be final,
executory and not appealable.
First, petitioner avers that the Commission violated its mandate
on preferential disposition of election contests as mandated by
Section 3, Article IX-C, 1987 Constitution as well as Section 257,
Omnibus Election Code that the COMELEC shall decide all
election cases brought before it within ninety days from the
date of submission. He points out that the case was ordered
submitted for resolution on November 15, 1999[4] but the
COMELEC En Banc promulgated its resolution only on April 4,
2000,[5] four months and four days after November 14, 1999.
We are not unaware of the Constitutional provision cited by
petitioner. We agree with him that election cases must be
resolved justly, expeditiously and inexpensively. We are also not
unaware of the requirement of Section 257 of the Omnibus
Election Code that election cases brought before the
Commission shall be decided within ninety days from the date
of submission for decision.[6] The records show that petitioner
contested the results of ten (10) election precincts involving
scrutiny of affirmation, reversal, validity, invalidity, legibility,
misspelling, authenticity, and other irregularities in these
ballots. The COMELEC has numerous cases before it where
attention to minutiae is critical. Considering further the
tribunals manpower and logistic limitations, it is sensible to
treat the procedural requirements on deadlines realistically.
Overly strict adherence to deadlines might induce the
Commission to resolve election contests hurriedly by reason of
lack of material time. In our view this is not what the framers of
the Code had intended since a very strict construction might
allow procedural flaws to subvert the will of the electorate and
would amount to disenfranchisement of voters in numerous
cases.
Petitioner avers the COMELEC abused its discretion when it
failed to treat the case preferentially. Petitioner misreads the
provision in Section 258 of the Omnibus Election Code. It will be
noted that the preferential disposition applies to cases before
the courts[7]and not those before the COMELEC, as a faithful
reading of the section will readily show.
Further, we note that petitioner raises the alleged delay of the
COMELEC for the first time. As private respondent pointed out,
petitioner did not raise the issue before the COMELEC when the
case was pending before it. In fact, private respondent points
out that it was she who filed a Motion for Early Resolution of
the case when it was before the COMELEC. The active
participation of a party coupled with his failure to object to the
jurisdiction of the court or quasi-judicial body where the action
is pending, is tantamount to an invocation of that jurisdiction
and a willingness to abide by the resolution of the case and will
bar said party from later impugning the court or the bodys
jurisdiction.[8] On the matter of the assailed resolution,
therefore, we find no grave abuse of discretion on this score by
the COMELEC.
Second, petitioner alleges that the COMELEC En Banc granted
the Motion for Execution pending appeal of private
respondents on April 2, 2000 when the appeal was no longer
pending. He claims that the motion had become obsolete and
unenforceable and the appeal should have been allowed to
take its normal course of finality and execution after the 30-day
period. Additionally, he avers it did not give one good reason to
allow the execution pending appeal.
We note that when the motion for execution pending appeal
was filed, petitioner had a motion for reconsideration before
the Second Division. This pending motion for reconsideration
suspended the execution of the resolution of the Second
Division. Appropriately then, the division must act on the
motion for reconsideration. Thus, when the Second Division
resolved both petitioners motion for reconsideration and
private respondents motion for execution pending appeal, it did
so in the exercise of its exclusive appellate jurisdiction. The
requisites for the grant of execution pending appeal are: (a)
there must be a motion by the prevailing party with notice to
the adverse party; (b) there must be a good reason for the
execution pending appeal; and (c) the good reason must be
stated in a special order.[9] In our view, these three requisites
were present. In its motion for execution, private respondent
cites that their case had been pending for almost three years
and the remaining portion of the contested term was just two
more years. In a number of similar cases and for the same good
reasons, we upheld the COMELECs decision to grant execution
pending appeal in the best interest of the electorate.[10]
Correspondingly, we do not find that the COMELEC abused its
discretion when it allowed the execution pending appeal.
Third, petitioner contends that the COMELEC misinterpreted
Section 2 (2), second paragraph, Article IX-C of the 1987
Constitution. He insists that factual findings of the COMELEC in
election cases involving municipal and barangay officials may
still be appealed. He cites jurisprudence stating that such
decisions, final orders or rulings do not preclude a recourse to
this Court by way of a special civil action for certiorari,[11]
when grave abuse of discretion has marred such factual
determination,[12] and when there is arbitrariness in the
factual findings.[13]
We agree with petitioner that election cases pertaining to
barangay elections may be appealed by way of a special civil
action for certiorari. But this recourse is available only when the
COMELECs factual determinations are marred by grave abuse
of discretion. We find no such abuse in the instant case. From
the pleadings and the records, we observed that the lower
court and the COMELEC meticulously pored over the ballots
reviewed. Because of its fact-finding facilities and its knowledge
derived from actual experience, the COMELEC is in a peculiarly
advantageous position to evaluate, appreciate and decide on
factual questions before it. Here, we find no basis for the
allegation that abuse of discretion or arbitrariness marred the
factual findings of the COMELEC. As previously held, factual
findings of the COMELEC based on its own assessments and
duly supported by evidence, are conclusive on this Court, more
so in the absence of a grave abuse of discretion, arbitrariness,
fraud, or error of law in the questioned resolutions.[14] Unless
any of these causes are clearly substantiated, the Court will not
interfere with the COMELECs findings of fact.
WHEREFORE, the instant petition is DISMISSED, and the En
Banc Resolution of the Commission on Election is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 140335 December 13, 2000
THELMA P. GAMINDE, petitioner,
vs.
COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN, Hon.
RAUL C. FLORES and EMMANUEL M. DALMAN, respondents.
DECISION
PARDO, J.:
The Case
The case is a special civil action of certiorari seeking to annul and
set aside two "decisions" of the Commission on Audit ruling that
petitioner’s term of office as Commissioner, Civil Service
Commission, to which she was appointed on June 11, 1993,
expired on February 02, 1999, as set forth in her appointment
paper.
The Facts
On June 11, 1993, the President of the Philippines appointed
petitioner Thelma P. Gaminde, ad interim, Commissioner, Civil
Service Commission. She assumed office on June 22, 1993, after
taking an oath of office. On September 07, 1993, the Commission
on Appointment, Congress of the Philippines confirmed the
appointment. We quote verbatim her appointment paper:
"11 June 1993
"Madam:
"Pursuant to the provisions of existing laws, you are hereby
appointed, ad interim, COMMISSIONER, CIVIL SERVICE
COMMISSION, for a term expiring February 2, 1999.
"By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this Office and
the Civil Service Commission with copies of your oath of office."1
However, on February 24, 1998, petitioner sought clarification
from the Office of the President as to the expiry date of her term
of office. In reply to her request, the Chief Presidential Legal
Counsel, in a letter dated April 07, 19982 opined that petitioner’s
term of office would expire on February 02, 2000, not on
February 02, 1999.
Relying on said advisory opinion, petitioner remained in office
after February 02, 1999. On February 04, 1999, Chairman
Corazon Alma G. de Leon, wrote the Commission on Audit
requesting opinion on whether or not Commissioner Thelma P.
Gaminde and her co-terminous staff may be paid their salaries
notwithstanding the expiration of their appointments on
February 02, 1999.
On February 18, 1999, the General Counsel, Commission on
Audit, issued an opinion that "the term of Commissioner
Gaminde has expired on February 02, 1999 as stated in her
appointment conformably with the constitutional intent."3
Consequently, on March 24, 1999, CSC Resident Auditor Flovitas
U. Felipe issued notice of disallowance No. 99-002-101 (99),
disallowing in audit the salaries and emoluments pertaining to
petitioner and her co-terminous staff, effective February 02,
1999.4
On April 5, 1999, petitioner appealed the disallowance to the
Commission on Audit en banc. On June 15, 1999, the
Commission on Audit issued Decision No. 99-090 dismissing
petitioner’s appeal. The Commission on Audit affirmed the
propriety of the disallowance, holding that the issue of
petitioner’s term of office may be properly addressed by mere
reference to her appointment paper which set the expiration
date on February 02, 1999, and that the Commission is bereft of
power to recognize an extension of her term, not even with the
implied acquiescence of the Office of the President.5
In time, petitioner moved for reconsideration; however, on
August 17, 1999, the Commission on Audit denied the motion in
Decision No. 99-129.6
Hence, this petition.7
The Issue
The basic issue raised is whether the term of office of Atty.
Thelma P. Gaminde, as Commissioner, Civil Service Commission,
to which she was appointed on June 11, 1993, expired on
February 02, 1999, as stated in the appointment paper, or on
February 02, 2000, as claimed by her.
The Court’s Ruling
The term of office of the Chairman and members of the Civil
Service Commission is prescribed in the 1987 Constitution, as
follows:
"Section 1 (2). The Chairman and the Commissioners shall be
appointed by the President with the consent of the Commission
on Appointments for a term of seven years without
reappointment. Of those first appointed, the Chairman shall hold
office for seven years, a Commissioner for five years, and
another Commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term
of the predecessor. In no case shall any Member be appointed
or designated in a temporary or acting capacity."8
The 1973 Constitution introduced the first system of a regular
rotation or cycle in the membership of the Civil Service
Commission. The provision on the 1973 Constitution reads:
"x x x The Chairman and the Commissioners shall be appointed
by the Prime Minister for a term of seven years without
reappointment. Of the Commissioners first appointed, one shall
hold office for seven years, another for five years, and the third
for three years. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor."9
Actually, this was a copy of the Constitutional prescription in the
amended 1935 Constitution of a rotational system for the
appointment of the Chairman and members of the Commission
on Elections. The Constitutional amendment creating an
independent Commission on Elections provides as follows:
"Section 1. There shall be an independent Commission on
Elections composed of a Chairman and two other Members to
be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a term
of nine years and may not be reappointed. Of the Members of
the Commission first appointed, one shall hold office for nine
years, another for six years, and the third for three years. The
Chairman and the other Members of the Commission on
Elections may be removed from office only by impeachment in
the manner provided in this Constitution."10
In Republic vs. Imperial,11 we said that "the operation of the
rotational plan requires two conditions, both indispensable to its
workability: (1) that the terms of the first three (3)
Commissioners should start on a common date, and, (2) that any
vacancy due to death, resignation or disability before the
expiration of the term should only be filled only for the unexpired
balance of the term."12
Consequently, the terms of the first Chairmen and
Commissioners of the Constitutional Commissions under the
1987 Constitution must start on a common date, irrespective of
the variations in the dates of appointments and qualifications of
the appointees, in order that the expiration of the first terms of
seven, five and three years should lead to the regular recurrence
of the two-year interval between the expiration of the terms.13
Applying the foregoing conditions to the case at bar, we rule that
the appropriate starting point of the terms of office of the first
appointees to the Constitutional Commissions under the 1987
Constitution must be on February 02, 1987, the date of the
adoption of the 1987 Constitution. In case of a belated
appointment or qualification, the interval between the start of
the term and the actual qualification of the appointee must be
counted against the latter.14
In the law of public officers, there is a settled distinction between
"term" and "tenure." "[T]he term of an office must be
distinguished from the tenure of the incumbent. The term
means the time during which the officer may claim to hold office
as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents
the term during which the incumbent actually holds the office.
The term of office is not affected by the hold-over. The tenure
may be shorter than the term for reasons within or beyond the
power of the incumbent."15
In concluding that February 02, 1987 is the proper starting point
of the terms of office of the first appointees to the Constitutional
Commissions of a staggered 7-5-3 year terms, we considered the
plain language of Article IX (B), Section 1 (2), Article IX (C), Section
1 (2) and Article IX (D), Section 1 (2) of the 1987 Constitution that
uniformly prescribed a seven-year term of office for Members of
the Constitutional Commissions, without re-appointment, and
for the first appointees terms of seven, five and three years,
without re-appointment. In no case shall any Member be
appointed or designated in a temporary or acting capacity. There
is no need to expressly state the beginning of the term of office
as this is understood to coincide with the effectivity of the
Constitution upon its ratification (on February 02, 1987).
On the other hand, Article XVIII, Transitory Provisions, 1987
Constitution provides:
"SEC. 15. The incumbent Members of the Civil Service
Commission, the Commission on Elections, and the Commission
on Audit shall continue in office for one year after the ratification
of this Constitution, unless they are sooner removed for cause or
become incapacitated to discharge the duties of their office or
appointed to a new term thereunder. In no case shall any
Member serve longer than seven years including service before
the ratification of this Constitution."16
What the above quoted Transitory Provisions contemplate is
"tenure" not "term" of the incumbent Chairmen and Members
of the Civil Service Commission, the Commission on Elections
and the Commission on Audit, who "shall continue in office for
one year after the ratification of this Constitution, unless they
are sooner removed for cause or become incapacitated to
discharge the duties of their office or appointed to a new term
thereunder." The term "unless" imports an exception to the
general rule.17 Clearly, the transitory provisions mean that the
incumbent members of the Constitutional Commissions shall
continue in office for one year after the ratification of this
Constitution under their existing appointments at the discretion
of the appointing power, who may cut short their tenure by: (1)
their removal from office for cause; (2) their becoming
incapacitated to discharge the duties of their office, or (3) their
appointment to a new term thereunder, all of which events may
occur before the end of the one year period after the effectivity
of the Constitution.
However, the transitory provisions do not affect the term of
office fixed in Article IX, providing for a seven-five-three year
rotational interval for the first appointees under this
Constitution.
At the time of the adoption of the 1987 Constitution, the
incumbent Chairman and members of the Civil Service
Commission were the following: (1) Chairperson Celerina G.
Gotladera. She was initially appointed as OIC Chairman on March
19, 1986, and appointed chairman on December 24, 1986, which
she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On
June 25, 1986, President Corazon C. Aquino appointed him
Commissioner, without any term. He assumed office on July 9,
1986, and served until March 31, 1987, when he filed a
certificate of candidacy for the position of Congressman, 2nd
District, Leyte, thereby vacating his position as Commissioner.
His tenure was automatically cut-off by the filing of his certificate
of candidacy. (3) Atty. Mario D. Yango. On January 22, 1985,
President Ferdinand E. Marcos appointed him Commissioner for
a term expiring January 25, 1990. He served until February 2,
1988, when his term ended in virtue of the transitory provisions
referred to. On May 30, 1988, President Aquino re-appointed
him to a new three-year term and served until May 31, 1991,
exceeding his lawful term, but not exceeding the maximum of
seven years, including service before the ratification of the 1987
Constitution. Under this factual milieu, it was only Commissioner
Yango who was extended a new term under the 1987
Constitution. The period consumed between the start of the
term on February 02, 1987, and his actual assumption on May
30, 1988, due to his belated appointment, must be counted
against him.
Given the foregoing common starting point, we compute the
terms of the first appointees and their successors to the Civil
Service Commission under the 1987 Constitution by their
respective lines, as follows:
First line : Chairman – seven-year term. February 02, 1987 to
February 01, 1994. On January 30, 1988, the President
nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service
Commission. On March 02, 1988, the Commission on
Appointments confirmed the nomination. She assumed office on
March 04, 1988. Her term ended on February 02, 1994. She
served as de facto Chairman until March 04, 1995. On March 05,
1995, the President appointed then Social Welfare Secretary
Corazon Alma G. de Leon, Chairman, Civil Service Commission, to
a regular seven-year term. This term must be deemed to start on
February 02, 1994, immediately succeeding her predecessor,
whose term started on the common date of the terms of office
of the first appointees under the 1987 Constitution. She
assumed office on March 22, 1995, for a term expiring February
02, 2001.
This is shown in her appointment paper, quoted verbatim as
follows:
"March 5, 1995
"Madam:
"Pursuant to the provisions of Article VII, Section 16, paragraph
2, of the Constitution, you are hereby appointed, ad interim,
CHAIRMAN, CIVIL SERVICE COMMISSION, for a term expiring
February 2, 2001.
"By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this Office and
the Civil Service Commission with copies of your oath of office.
"(Sgd.) FIDEL V. RAMOS"
Second line : Commissioner – Five-year term. February 02, 1987
to February 02, 1992. On January 30, 1988, the President
nominated Atty. Samilo N. Barlongay Commissioner, Civil Service
Commission. On February 17, 1988, the Commission on
Appointments, Congress of the Philippines, confirmed the
nomination. He assumed office on March 04, 1988. His term
ended on February 02, 1992. He served as de facto
Commissioner until March 04, 1993.
On June 11, 1993, the President appointed Atty. Thelma P.
Gaminde Commissioner, Civil Service Commission, for a term
expiring February 02, 1999.18 This terminal date is specified in
her appointment paper. On September 07, 1993, the
Commission on Appointments confirmed the appointment. She
accepted the appointment and assumed office on June 22, 1993.
She is bound by the term of the appointment she accepted,
expiring February 02, 1999. In this connection, the letter dated
April 07, 1998, of Deputy Executive Secretary Renato C.
Corona19 clarifying that her term would expire on February 02,
2000, was in error. What was submitted to the Commission on
Appointments was a nomination for a term expiring on February
02, 1999. Thus, the term of her successor20 must be deemed to
start on February 02, 1999, and expire on February 02, 2006.
Third line : Commissioner – Three-year term. February 02, 1987
to February 02, 1990. Atty. Mario D. Yango was incumbent
commissioner at the time of the adoption of the 1987
Constitution. His extended tenure ended on February 02, 1988.
In May, 1988, President Corazon C. Aquino appointed him
Commissioner, Civil Service Commission to a new three-year
term thereunder. He assumed office on May 30, 1988. His term
ended on February 02, 1990, but served as de facto
Commissioner until May 31, 1991. On November 26, 1991, the
President nominated Atty. Ramon P. Ereñeta as Commissioner,
Civil Service Commission. On December 04, 1991, the
Commission on Appointments confirmed the nomination. He
assumed office on December 12, 1991, for a term expiring
February 02, 1997.21
Commendably, he voluntarily retired on February 02, 1997. On
February 03, 1997, President Fidel V. Ramos appointed Atty. Jose
F. Erestain, Jr. Commissioner, Civil Service Commission, for a
term expiring February 02, 2004. He assumed office on February
11, 1997.
Feb. 02, 1992 March 04, 1993

Thus, we see the regular interval of vacancy every two (2) years,
Gaminde – 2nd appointee Feb. 02, 1992 to June 11, 1993 to
namely, February 02, 1994, for the first Chairman,22 February
02, 1992, for the first five-year term Commissioner,23 and
February 02, 1990, for the first three-year term
Commissioner.24 Their successors must also maintain the two Feb. 02, 1999 Feb. 02, 2000
year interval, namely: February 02, 2001, for Chairman;25
February 02, 1999, for Commissioner Thelma P. Gaminde, and
February 02, 1997, for Commissioner Ramon P. Ereñeta, Jr. Valmores – 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to

The third batch of appointees would then be having terms of (incumbent) Feb. 02, 2006 Feb. 02, 2006
office as follows:

3rd Member Term Tenure

First line : Chairman, February 02, 2001 to February 02, 2008;
Second line: Commissioner, February 02, 1999 to February 02,
2006;26 and, Third line: Commissioner, February 02, 1997 to (3-year original)
February 02, 2004,27 thereby consistently maintaining the two-
year interval.
Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to

The line of succession, terms of office and tenure of the

Chairman and members of the Civil Service Commission may be
Feb. 02, 1990 May 31, 1991
outlined as follows:28

Ereñeta – 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to

Chairman Term Tenure

Feb. 02, 1997 Feb. 02, 1997

(7-year original)

Erestain, Jr. – 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to
Sto. Tomas – 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to

(incumbent) Feb. 02, 2004 Feb. 02, 2004

Feb. 02, 1994 March 08, 1995

The Fallo
De Leon – 2nd appointee Feb. 02, 1994 to March 22, 1995 to

WHEREFORE, we adjudge that the term of office of Ms. Thelma

(incumbent) Feb. 02, 2001 Feb. 02, 2001
_______ - 3rd appointee Feb. 02, 2001 to
Feb. 02, 2008
P. Gaminde as Commissioner, Civil Service Commission, under an
appointment extended to her by President Fidel V. Ramos on
June 11, 1993, expired on February 02, 1999. However, she
served as de facto officer in good faith until February 02, 2000,
and thus entitled to receive her salary and other emoluments for
actual service rendered. Consequently, the Commission on Audit
erred in disallowing in audit such salary and other emoluments,
including that of her co-terminous staff.

2nd Member Term Tenure

(5-year original)
Barlongay – 1st appointee Feb. 02, 1987 to March 04, 1988 to
ACCORDINGLY, we REVERSE the decisions of the Commission on
Audit insofar as they disallow the salaries and emoluments of
Commissioner Thelma P. Gaminde and her coterminous staff
during her tenure as de facto officer from February 02, 1999,
until February 02, 2000.
This decision shall be effective immediately.
No costs.
SO ORDERED.
Davide, Jr., C.J., Melo, Vitug, Kapunan, Panganiban, Quisumbing,
Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Bellosillo J., no part. Related to one of parties.
Puno J., in the result.
Mendoza, J., join De Leon’s dissent.
De Leon, Jr ., J., see concurring & dissenting opinion.
EN BANC
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her
capacity as ACTING CHAIRPERSON of the COMMISSION ON
ELECTIONS, Respondent.
DECISION
CRUZ, J.:
The petitioner is challenging the designation by the President of
the Philippines of Associate Commissioner Haydee B. Yorac as
Acting Chairman of the Commission on Elections, in place of
Chairman Hilario B. Davide, who had been named chairman of
the fact-finding commission to investigate the December 1989
coup d' etat attempt.
The qualifications of the respondent are conceded by the
petitioner and are not in issue in this case. What is the power of
the President of the Philippines to make the challenged
designation in view of the status of the Commission on Elections
as an independent constitutional body and the specific provision
of Article IX-C, Section 1(2) of the Constitution that "(I)n no case
shall any Member (of the Commission on Elections) be appointed
or designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista,
85 Phil. 101, where President Elpidio Quirino designated the
Solicitor General as acting member of the Commission on
Elections and the Court revoked the designation as contrary to
the Constitution. It is also alleged that the respondent is not even
the senior member of the Commission on Elections, being
outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-
cralaw
The petitioner contends that the choice of the Acting Chairman
of the Commission on Elections is an internal matter that should
be resolved by the members themselves and that the intrusion
of the President of the Philippines violates their independence.
He cites the practice in this Court, where the senior Associate
Justice serves as Acting Chief Justice in the absence of the Chief
Justice. No designation from the President of the Philippines is
necessary.
In his Comment, the Solicitor General argues that no such
designation is necessary in the case of the Supreme Court
because the temporary succession cited is provided for in
Section 12 of the Judiciary Act of 1948. A similar rule is found in
Section 5 of BP 129 for the Court of Appeals. There is no such
arrangement, however, in the case of the Commission on
Elections. The designation made by the President of the
Philippines should therefore be sustained for reasons of
"administrative expediency," to prevent disruption of the
functions of the COMELEC.
Expediency is a dubious justification. It may also be an
overstatement to suggest that the operations of the Commission
on Elections would have been disturbed or stalemated if the
President of the Philippines had not stepped in and designated
an Acting Chairman. There did not seem to be any such problem.
In any event, even assuming that difficulty, we do not agree that
"only the President (could) act to fill the hiatus," as the Solicitor
General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all
the Constitutional Commissions as "independent." Although
essentially executive in nature, they are not under the control of
the President of the Philippines in the discharge of their
respective functions. Each of these Commissions conducts its
own proceedings under the applicable laws and its own rules and
in the exercise of its own discretion. Its decisions, orders and
rulings are subject only to review on Certiorari by this Court as
provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular
chairman comes under that discretion. That discretion cannot be
exercised for it, even with its consent, by the President of the
Philippines.
A designation as Acting Chairman is by its very terms essentially
temporary and therefore revocable at will. No cause need be
SO ORDERED.
established to justify its revocation. Assuming its validity, the
designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of
the Philippines at any time and for whatever reason she sees fit. Fernan C . J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,
It is doubtful if the respondent, having accepted such Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado,
designation, will not be estopped from challenging its JJ., concur.
withdrawal.chanrobles virtual law library
Feliciano, J., is on leave.

It is true, as the Solicitor General points out, that the respondent

Sarmiento, J., took no part.
cannot be removed at will from her permanent position as
Associate Commissioner. It is no less true, however, that she can [G.R. No. 129133. November 25, 1998]
be replaced as Acting Chairman, with or without cause, and thus
deprived of the powers and perquisites of that temporary
position. ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU,
petitioner, vs. HON. COURT OF APPEALS and CIVIL SERVICE
COMMISSION, respondents.
The lack of a statutory rule covering the situation at bar is no
justification for the President of the Philippines to fill the void by
extending the temporary designation in favor of the respondent. DECISION
This is still a government of laws and not of men. The problem
allegedly sought to be corrected, if it existed at all, did not call
for presidential action. The situation could have been handled by
PURISIMA, J.:
the members of the Commission on Elections themselves
without the participation of the President, however well-
meaning.
Before the Court is a Petition for Review on Certiorari under Rule
45 of the Revised Rules of Court to review and set aside the 7
November 1996 Decision[1] and 18 March 1997 Resolution[2] of
In the choice of the Acting Chairman, the members of the
the Court of Appeals[3] in CA - G.R. SP No. 37720.
Commission on Elections would most likely have been guided by
the seniority rule as they themselves would have appreciated it.
In any event, that choice and the basis thereof were for them
and not the President to make. As culled by the Court of Appeals, the antecedent facts that
matter are, as follows:

The Court has not the slightest doubt that the President of the
Philippines was moved only by the best of motives when she
issued the challenged designation. But while conceding her
goodwill, we cannot sustain her act because it conflicts with the
Constitution. Hence, even as this Court revoked the designation
in the Bautista case, so too must it annul the designation in the
case at bar.
The Constitution provides for many safeguards to the
independence of the Commission on Elections, foremost among
which is the security of tenure of its members. That guaranty is
not available to the respondent as Acting Chairman of the
Commission on Elections by designation of the President of the
Philippines.
WHEREFORE, the designation by the President of the Philippines
of respondent Haydee B. Yorac as Acting Chairman of the
Commission on Elections is declared UNCONSTITUTIONAL, and
the respondent is hereby ordered to desist from serving as such.
This is without prejudice to the incumbent Associate
Commissioners of the Commission on Elections restoring her to
the same position if they so desire, or choosing another member
in her place, pending the appointment of a permanent Chairman
by the President of the Philippines with the consent of the
Commission on Appointments.: rd
In a letter dated October 13, 1988, respondent CSC through
Chairman Patricia A. Sto. Tomas required the Secretary of
Finance to submit to the CSC all appointments in the Economic
Intelligence and Investigation Bureau (EIIB).
Instead of complying with the said letter, petitioner Jose T.
Almonte, as Commissioner of EIIB, wrote a letter dated March
29, 1989, to respondent CSC, requesting for confirmation of EIIBs
exemption from CSC rules and regulations with respect to
appointments and other personnel actions invoking as basis for
such exemption PD No. 1458 and LOI No. 71.
On June 21, 1989, respondent CSC issued the subject Resolution
No. 89-400, denying petitioner Almontes request for exemption
of the EIIB from the coverage of the civil service rules and
regulations and reiterating its order that petitioner EIIB submit
to the CSC all appointments to career or non-career positions in
the Bureau.
Not having received any compliance from petitioners,
respondent CSC, in its Order of December 7, 1990, directed
petitioner Jose T. Almonte to immediately implement Resolution
No. 89-400, with a warning that any EIIB official who shall fail or
refuse to comply with the said order shall be held liable for
indirect contempt.
On June 4, 1991, respondent CSC issued another order, requiring
petitioner Almonte to show cause why he should not be cited for
indirect contempt for his continued refusal to implement or
comply with CSC Resolution No. 89-400 and the Order of
December 7, 1990.
In a letter, dated June 13, 1991, petitioner Almonte explained to
the respondent CSC the reasons of the EIIB for its inability to
comply with Resolution No. 89-400. He invoked PD No. 1458 and
LOI No. 71 exempting the EIIB from the coverage of civil service
rules and regulations on appointments and other personnel
actions. Petitioner Almonte prayed that Resolution No. 89-400,
the Order of June 4, 1991, and the subsequent orders be set
aside.
On August 22, 1991, respondent CSC issued an order, finding
petitioner Almonte guilty of indirect contempt of the
Commission, the dispositive portion of which reads as follows:
WHEREFORE, foregoing premises considered, the Commission
hereby resolves to find and adjudge Jose T. Almonte,
Commissioner, EIIB, guilty of indirect contempt of the
Commission pursuant to Section 12 (11), Book V, Subtitle A of
Executive Order No. 292 and Memorandum Circular No. 42,
series of 1990. He is thus meted the penalty of fine P1,000.00
each day from the date of receipt of this Order dated December
7, 1990. Accordingly, the Cashier of the EIIB is hereby directed to
deduct from the salary of Commissioner Almonte the amount of
P1,000.00 each day of his failure to comply with the above CSC
Order. Let copies of this Order be furnished the Resident Auditor
of the EIIB as well as the COA, the Secretary of the Department
of Finance and the CSFO-DND, for their information and
guidance.
SO ORDERED.
Dissatisfied therewith, petitioner went to the Court of Appeals
on a Petition for Certiorari. However, on November 7, 1996, the
Court of Appeals dismissed the petition; ratiocinating thus:
The 1987 Constitution is so clear and categorical in its mandate
that:
Article IX (B), Section 2 (1). - The civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters.
The civil service contemplated in the constitutional provision is
very comprehensive in its scope, that it includes every category
of officer or employee of the government, its branches,
subdivisions and instrumentalities, and even employees of
private corporations, if such corporations are controlled or
owned by the government with original charters.
In the light of this constitutional mandate, petitioner EIIB, being
a government agency, is necessarily embraced by the civil
service. The fact that positions in the EIIB are primarily
confidential did not place it outside the domain of civil servants,
since it is conceded that one holding in the Government a
primarily confidential position is in the Civil Service (Ingles v.
Mutuc, 26 SCRA 171). That fact merely exempts confidential
positions in the EIIB from the constitutional rule that
appointments in the civil service shall be made only according to
merit and fitness to be determined, as far as practicable ... by
competitive examination [Art. IX (B), Sec. 2 (2) ]. And it is in this
sense that the provisions of PD 1458, particularly Section 5 and
LOI 71 relied upon by the petitioners should be interpreted.
Neither does petitioners contention that if EIIBs positions and
personnel actions will be opened, one may know its operations,
movements, targets, strategies, and tactics and the whole of its
being deserve merit, as the same is pure speculation and
conjecture. EIIB officials and personnel remain civil servants and
as correctly argued by the Solicitor General, EIIB officials
occupying confidential positions, remain accountable to the
people and are subject to the same state policies on morale,
efficiency, integrity, responsiveness and courtesy in the civil
service. Thus, We hold that the personnel in the EEIB are covered
by the civil service.
xxx
WHEREFORE, the Court upholds Resolution No. 89-400 but
declares CSC Orders of December 7, 1990, June 4, 1991, and of
August 22, 1991, as NULL AND VOID, the Civil Service
Commission not having jurisdiction to cite and punish
Commissioner Jose T. Almonte of the Economic Intelligence and
Investigation Bureau for indirect contempt of the Commission.
With the denial of its motion for reconsideration by Resolution,
dated March 18, 1997, of the Court of Appeals, petitioner found
its way to this Court via the present Petition; contending, that:
IN HOLDING THAT PETITIONER IS COVERED BY CIVIL SERVICE,
RESPONDENT COURT VIOLATED P.D. No. 1458 AND LOI No. 71
WHICH EXPRESSLY EXEMPT IT FROM CIVIL SERVICE COVERAGE.
The pivotal issue here is: whether or not the petitioner,
Economic Intelligence Investigation Bureau (EIIB), is embraced
by the Civil Service.
Section 2, subparagraph (1), Article IX, paragraph (B) of the 1987
Constitution provides:
The civil service embraces all branches, subdivisions,
instrumentalities, agencies of the Government, including
government-owned or controlled corporations with original
charter.
Succinct and clear is the provision of the Constitution in point
that all government agencies, without exception, are covered by
the civil service.
Petitioner EIIB is a government agency under the Department of
Finance as provided by Section 17, Chapter 4, Title II, Book IV of
the 1987 Administrative Code.[4] Therefore, EIIB is within the
ambit of the Civil Service Law.
The civil service within the contemplation of the aforecited
constitutional provision is comprehensive in scope. It embraces
all officers and employees of the government, its branches,
subdivisions and instrumentalities. Even employees of
corporations owned or controlled by the government, with
original charters, are covered thereby.
Petitioner contends that EIIB is expressly exempted from civil
service coverage, under Section 5 of P.D. No. 1458, which
provides :
Application of WAPCO and Civil Service Rules - Personnel of the
FDIIB shall be exempted from WAPCO and Civil Service Rules and
Regulations relative to appointments and other personnel
actions: Provided, That they shall be entitled to the benefits and
privileges accorded to government employees ...
On the other hand, LOI No. 71, the Implementing Rules of P.D.
No. 1458, reads:
10. It is further directed that personnel of the BII shall be exempt
from OCPC and Civil Service Rules and Regulations relative to
appointments and other personnel actions; Provided, That they
shall be entitled to the benefits accorded to government
employees ... "
Petitioners submission is barren of merit.
The aforecited provisions of law provide for the exemption of
petitioner EIIB only from Civil Service Rules and Regulations
relative to appointments and other personnel actions, but not
from the Civil Service Law or Civil Service Rules and Regulations
relative to any other matter.
Neither can we uphold petitioners reliance on Section 26 of
Executive Order No. 127.[5] Petitioner, in gist, asserts exemption
from Civil Service coverage since the Bureau forms part of the
intelligence community created under the said Executive Order.
There is merit in the disquisition by the Court of Appeals that
membership of petitioner EIIB in the intelligence community is
of no moment, insofar as application of the Civil Service Law is
concerned. The National Bureau of Investigation (NBI), also a
member of the intelligence community which performs
functions similar to those of EIIB, e.g., intelligence gathering,
investigation, research, etc., submits to the Civil Service
Commission the appointments of all NBI personnel, whether
belonging to the career or non-career service. Besides, in Ingles
vs. Mutuc, 26 SCRA 171, this Court ruled that one holding in the
Government a primarily confidential position is in the Civil
Service.
Equally untenable is petitioners contention that because the
personnel of EIIB are occupying jobs highly confidential in
nature, the EIIB should not be required to submit the names of
its personnel to the Civil Service Commission.
In Almonte vs. Vasquez, 244 SCRA 286 [1995], EIIB was ordered
by the Ombudsman to produce documents relating to personnel
services and salary vouchers of EIIB employees. The Bureau
pleaded that such documents are classified, and knowledge of
EIIBs documents relative to its Personnel Services Funds and its
plantilla will inevitably lead to knowledge of its operations,
movements, targets and strategies, which could destroy the
Bureau itself. The Court ruled that the required documents can
be examined by the Ombudsman, explaining that:
... [T]here is no claim that military or diplomatic secrets will be
disclosed by the production of records pertaining to the
personnel of the EIIB. Indeed, EIIBs function is the gathering and
evaluation of intelligence reports and information regarding
illegal activities affecting the national economy, such as, but not
limited to, economic sabotage, smuggling, tax evasion, dollar
salting. Consequently, while in cases which involve state secrets
it may be sufficient to determine from the circumstances of the
case that there is reasonable danger that compulsion of the
evidence will expose military matters without compelling
production, no similar excuse can be made for a privilege resting
on other considerations.
Nor has our attention been called to any law or regulation which
considers personnel records of the EIIB as classified information
...
All things viewed in proper perspective, we are of the opinion,
and so hold, that the Court of Appeals erred not in holding that:
... [R]espondent CSCs act of requiring petitioner EIIB to submit to
it all appointments in the Bureau, for appropriate action, is part
of its administrative function as the central personnel agency of
the government.
WHEREFORE, the petition is hereby DENIED; and the Decision of
the Court of Appeals in CA-GR SP No. 37720 AFFIRMED, without
any pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Davide Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and
Pardo, JJ., concur.
G.R. No. L-64313 January 17, 1985
NATIONAL HOUSING CORPORATION, petitioner,
vs.
BENJAMIN JUCO AND THE NATIONAL LABOR
RELATIONS COMMISSION, respondents.
Government Corporate Counsel for petitioner.
Amante A. Pimentel for respondents.
GUTIERREZ, JR., J.:
Are employees of the National Housing Corporation
(NHC) covered by the Labor Code or by laws and
regulations governing the civil service?
The pertinent portion of the decision of respondent
National Labor Relations Commission (NLRC) reads:
The background facts of this case are stated in the
respondent-appellee's brief as follows:
The records reveal that private
respondent (Benjamin C. Juco) was a
project engineer of the National
Housing Corporation (NHC) from
November 16, 1970 to May 14, 1975.
For having been implicated in a crime
of theft and/or malversation of public
funds involving 214 pieces of scrap
G.I. pipes owned by the corporation
which was allegedly committed on
March 5, 1975. Juco's services were
terminated by (NHC) effective as of
the close of working hours on May 14,
1975. On March 25, 1977 he filed a
complaint for illegal dismissal against
petitioner (NHC) with Regional Office
No. 4, Department of Labor (now
Ministry of Labor and Employment)
docketed as R04-3-3309-77 (Annex A,
Petition). The said complaint was
certified by Regional Branch No. IV of
the NLRC for compulsory arbitration
where it was docketed as Case No.
RB-IV-12038-77 and assigned to
Labor Arbiter Ernilo V. Peñalosa. The
latter conducted the hearing. By
agreement of the parties, the case
was submitted for resolution upon
submission of their respective position
papers. Private respondent (Juco)
submitted his position paper on July
15, 1977. He professed innocence of
the criminal acts imputed against him
contending "that he was dismissed
based on purely fabricated charges
purposely to harass him because he
stood as a witness in the theft case
filed against certain high officials of
the respondent's establishment"
(NHC) and prayed for 'his immediate
reinstatement to his former position in
the (NHC) without loss of seniority
rights and the consequent payment of
his will back wages plus all the
benefits appertaining thereto. On July
28, 1977, the NHC also filed its
position paper alleging that the
Regional Office Branch IV, Manila,
NLRC, "is without authority to
entertain the case for lack of
jurisdiction, considering that the NHC
is a government owned and controlled
corporation; that even assuming that
this case falls within the jurisdiction of
this Office, respondent firm (now
petitioner) maintains that respondent
(Juco), now private respondent, was
separated from the service for valid
and justified reasons, i.e., for having
sold company properties consisting of
214 pieces of scrap G.I. pipes at a
junk shop in Alabang, Muntinlupa,
Metro Manila, and thereafter
appropriating the proceeds thereof to
his own benefit."
The fact that in the early case
of Fernandez v. Cedro (NLRC Case
No. 201165-74, May 19, 1975) the
Commission, (Second Division) ruled
that the respondent National Housing
Corporation is a government-owned or
controlled corporation does not
preclude us from later taking a
contrary stand if by doing so the ends
of justice could better be served.
For although adherence to precedents
(stare decisis) is a sum formula for
achieving uniformity of action and
conducive to the smooth operation of
an office, Idolatrous reverence for
precedents which have outlived their
validity and usefulness retards
progress and should therefore be
avoided. In fact, even courts do
reverse themselves for reasons of
justice and equity. This Commission
as an Administrative body performing
quasi judicial function is no exception.
WHEREFORE, in the light of the
foregoing, the decision appealed from
is hereby, set aside. In view, however,
of the fact that the Labor Arbiter did
not resolve the issue of illegal
dismissal we have opted to remand
this case to the Labor Arbiter a quo for
resolution of the aforementioned
issue.
The NHC is a one hundred percent (100%)
government-owned corporation organized in
accordance with Executive Order No. 399, the
Uniform Charter of Government Corporations, dated
January 5, 1951. Its shares of stock are owned by the
Government Service Insurance System the Social
Security System, the Development Bank of the
Philippines, the National Investment and Development
Corporation, and the People's Homesite and Housing
Corporation. Pursuant to Letter of Instruction No. 118,
the capital stock of NHC was increased from P100
million to P250 million with the five government
institutions above mentioned subscribing in equal
proportion to the increased capital stock. The NHC
has never had any private stockholders. The
government has been the only stockholder from its
creation to the present.
There should no longer be any question at this time
that employees of government-owned or controlled
corporations are governed by the civil service law and
civil service rules and regulations.
Section 1, Article XII-B of the Constitution specifically
provides:
The Civil Service embraces every
branch, agency, subdivision, and
instrumentality of the Government,
including every government-owned or
controlled corporation. ...
The 1935 Constitution had a similar provision in its
Section 1, Article XI I which stated:
A Civil Service embracing all branches
and subdivisions of the Government
shall be provided by law.
The inclusion of "government-owned or controlled
corporations" within the embrace of the civil service
shows a deliberate effort of the framers to plug an
earlier loophole which allowed government-owned or
controlled corporations to avoid the full consequences
of the an encompassing coverage of the civil service
system. The same explicit intent is shown by the
addition of "agency" and "instrumentality" to branches
and subdivisions of the Government. All offices and
firms of the government are covered.
The amendments introduced in 1973 are not Idle
exercises or a meaningless gestures. They carry the
strong message that t civil service coverage is broad
and an- embracing insofar as employment in the
government in any of its governmental or corporate
arms is concerned.
The constitutional provision has been implemented by
statute. Presidential Decree No. 807 is unequivocal
that personnel of government-owned or controlled
corporations belong to the civil service and are
subject to civil service requirements.
It provides:
SEC. 56. Government-owned or
Controlled Corporations Personnel. —
All permanent personnel of
government-owned or controlled
corporations whose positions are now
embraced in the civil service shall
continue in the service until they have
been given a chance to qualify in an
appropriate examination, but in the
meantime, those who do not possess
the appropriate civil service eligibility
shag not be promoted until they
qualify in an appropriate civil service
examination. Services of temporary
personnel may be terminated any
time.
The very Labor Code, P. D. No. 442 as amended,
which the respondent NLRC wants to apply in its
entirety to the private respondent provides:
ART. 277. Government employees. —
The terms and conditions of
employment of all government
employees, including employees of
government-owned and controlled
corporations shall be governed by the
Civil Service Law, rules and
regulations. Their salaries shall be
standardized by the National
Assembly as provided for in the New
Constitution. However, there shall be
reduction of existing wages, benefits
and other terms and conditions of
employment being enjoyed by them at
the time of the adoption of the Code.
Our decision in Alliance of Government Workers, et al
v. Honorable Minister of Labor and Employment et
all. (124 SCRA 1) gives the background of the
amendment which includes government-owned or
controlled corporations in the embrace of the civil
service.
We stated:
Records of the 1971 Constitutional
Convention show that in the
deliberation held relative to what is
now Section 1(1), Article XII-B, supra,
the issue of the inclusion of
government-owned or controlled
corporations figured prominently.
The late delegate Roberto S. Oca, a
recognized labor leader, vehemently
objected to the inclusion of
government-owned or controlled
corporations in the Civil Service. He
argued that such inclusion would put
asunder the right of workers in
government corporations, recognized
in jurisprudence under the 1935
Constitution, to form and join labor
unions for purposes of collective
bargaining with their employers in the
same manner as in the private section
(see: records of 1971 Constitutional
Convention).
In contrast, other labor experts and
delegates to the 1971 Constitutional
Convention enlightened the members
of the Committee on Labor on the
divergent situation of government Government. This
workers under the 1935 Constitution, would be inimical to
and called for its rectification. Thus, in the public interest.
a Position Paper dated November 22,
197 1, submitted to the Committee on Moreover, it is
Labor, 1971 Constitutional asserted that public
Convention, then Acting employees by joining
Commissioner of Civil Service Epi Rey labor unions may be
Pangramuyen declared: compelled to support
objectives which are
It is the stand, political in nature and
therefore, of this thus jeopardize the
Commission that by fundamental principle
reason of the nature of that the governmental
the public employer machinery must be
and the peculiar impartial and non-
character of the public political in the sense of
service, it must party politics. (See:
necessary regard the Records of 1971
right to strike given to Constitutional
unions in private Convention).
industry as not
applying to public Similar, Delegate Leandro P. Garcia,
employees and civil expressing for the inclusion of
service employees. It government-owned or controlled
has been stated that corporations in the Civil Service,
the Government, in argued:
contrast to the private
employer, protects the It is meretricious to
interests of all people contend that because
in the public service, Government-owned or
and that accordingly, controlled corporations
such conflicting yield profits, their
interests as are employees are entitled
present in private labor to better wages and
relations could not fringe benefits than
exist in the relations employees of
between government Government other than
and those whom they Government-owned
employ. and controlled
corporations which are
Moreover, not making profits.
determination of There is no gainsaying
employment conditions the fact that the capital
as well as supervision they use is the
of the management of people's money. (see:
the public service is in Records of the 1971
the hands of legislative Constitutional
bodies. It is further Convention).
emphasized that
government agencies Summarizing the deliberations of the
in the performance of 1971 Constitutional Convention on the
their duties have a inclusion of Government-owned or
right to demand controlled corporation Dean Joaquin
undivided allegiance G. Bernas, SJ., of the Ateneo de
from their workers and Manila University Professional School
must always maintain of Law, stated that government-owned
a pronounced esprit de corporations came under attack as g
corps or firm discipline cows of a privileged few enjoying
among their staff salaries far higher than their
members. It would be counterparts in the various branches
highly incompatible of government, while the capital of
with these these corporations belongs to the
requirements of the Government and government money
public service, if is pumped into them whenever on the
personnel took orders brink of disaster, and they should
from union leaders or therefore come under the strict
put solidarity with surveillance of the Civil Service
members of the System. (Bernas, The 1973 Philippine
working class above
solidarity with the
 Constitution, Notes and Cases, 1974
ed., p. 524).
Applying the pertinent provisions of the Constitution,
the Labor Code as amended, and the Civil Service
Decree as amended and the precedent in the Alliance
of Government Workers decision, it is clear that the
petitioner National Housing Corporation comes under
the jurisdiction of the Civil Service Commission, not
the Ministry of Labor and Employment.
This becomes more apparent if we consider the fact
that the NHC performs governmental functions and
not proprietary ones.
The NHC was organized for the governmental
objectives stated in its amended articles of
incorporation as follows:
SECOND: That the purpose for which
the corporation is organized is to
assist and carry out the coordinated
massive housing program of the
government, principally but not limited
to low-cost housing with the
integration cooperation and assistance
of all governmental agencies
concerned, through the carrying on of
any or all the following activities:
l) The acquisition, development or
reclamation of lands for the purpose of
construction and building therein
preferably low-cost housing so as to
provide decent and durable dwelling
for the greatest number of inhabitants
in the country;
2) The promotion and development of
physical social and economic
community growth through the
establishment of general physical
plans for urban, suburban and
metropolitan areas to be characterized
by efficient land use patterns;
3) The coordination and
implementation of all projects of the
government for the establishment of
nationwide and massive low cost
housing;
4) The undertaking and conducting of
research and technical studies of the
development and promotion of
construction of houses and buildings
of sound standards of design liability,
durability, safety, comfort and size for
improvement of the architectural and
engineering designs and utility of
houses and buildings with the
utilization of new and/or native
materials economics in material and
construction, distribution, assembly
and construction and of applying
advanced housing and building
technology.
5) Construction and installation in
these projects of low-cost housing
privately or cooperatively owned water
and sewerage system or waste
disposal facilities, and the formulations
of a unified or officially coordinated
urban transportation system as a part
of a comprehensive development plan
in these areas.
The petitioner points out that it was established as an
instrumentality of the government to accomplish
governmental policies and objectives and extend
essential services to the people. It would be
incongruous if employees discharging essentially
governmental functions are not covered by the same
law and rules which govern those performing other
governmental functions. If government corporations
discharging proprietary functions now belong to the
civil service with more reason should those
performing governmental functions be governed by
civil service law.
The respondent NLRC cites a 1976 opinion of the
Secretary of Justice which holds that the phrase
"government-owned or controlled corporations" in
Section 1, Article XII-B of the Constitution
contemplates only those government-owned or
controlled corporations created by special law. The
opinion states that since the Constitution provides for
the organization or regulation of private corporations
only by "general law", expressly excluding
government-owned or controlled corporations, it
follows that whenever the Constitution mentions
government-owned or controlled corporations, it must
refer to those created by special law. P.D. No. 868
which repeals all charters, laws, decrees, rules, and
provisions exempting any branch, agency,
subdivision, or instrumentality of the government,
including government- owned or controlled
corporations from the civil service law and rules is
also cited to show that corporations not governed by
special charters or laws are not to be brought within
civil service coverage. The discussions in the
Constitutional Convention are also mentioned. It
appears that at the time the Convention discussed
government-owned or controlled corporations, all
such corporations were organized only under special
laws or charters.
The fact that "private" corporations owned or
controlled by the government may be created by
special charter does not mean that such corporations
not created by special law are not covered by the civil
service. Nor does the decree repealing all charters
and special laws granting exemption from the civil
service law imply that government corporations not
created by special law are exempt from civil service
coverage. These charters and statutes are the only
laws granting such exemption and, therefore, they are
the only ones which could be repealed. There was no
similar exempting provision in the general law which
called for repeal. And finally, the fact that the
Constitutional Convention discussed only corporations
created by special law or charter cannot be an
argument to exclude petitioner NHC from civil service
coverage. As stated in the cited speech delivered
during the convention sessions of March 9, 1972, all
government corporations then in existence were
organized under special laws or charters. The
convention delegates could not possibly discuss
government-owned or controlled corporations which
were still non-existent or about whose existence they
were unaware.
Section I of Article XII-B, Constitution uses the word
"every" to modify the phrase "government-owned or
controlled corporation."
"Every" means each one of a group, without
exception It means all possible and all taken one by
one. Of course, our decision in this case refers to a
corporation created as a government-owned or
controlled entity. It does not cover cases involving
private firms taken over by the government in
foreclosure or similar proceedings. We reserve
judgment on these latter cases when the appropriate
controversy is brought to this Court.
The infirmity of the respondents' position lies in its
permitting a circumvention or emasculation of Section
1, Article XII-B of the Constitution It would be possible
for a regular ministry of government to create a host
of subsidiary corporations under the Corporation
Code funded by a willing legislature. A government-
owned corporation could create several subsidiary
corporations. These subsidiary corporations would
enjoy the best of two worlds. Their officials and
employees would be privileged individuals, free from
the strict accountability required by the Civil Service
Decree and the regulations of the Commission on
Audit. Their incomes would not be subject to the
competitive restraints of the open market nor to the
terms and conditions of civil service employment.
Conceivably, all government-owned or controlled
corporations could be created, no longer by special
charters, but through incorporation under the general
law. The constitutional amendment including such
corporations in the embrace of the civil service would
cease to have application. Certainly, such a situation
cannot be allowed to exist.
WHEREFORE, the petition is hereby GRANTED. The
questioned decision of the respondent National Labor
Relations Commission is SET ASIDE. The decision of
the Labor Arbiter dismissing the case before it for lack
of jurisdiction is REINSTATED.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Aquino,
Concepcion, Jr., Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente and Cuevas, JJ., concur.
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.
Isagani M. Jungco, Valeriano S. Peralta, Miguel
Famularcano, Jr. and Virgilio E. Acierto for petitioners.
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",4 since it was Congress through the
questioned proviso and not the President who
appointed the Mayor to the subject posts;5 and, (c)
Sec. 261, par. (g), of the Omnibus Election Code,
which says:
Sec. 261. Prohibited Acts. — The following shall
be guilty of an election offense: . . . (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
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.
The analogy with the position of Chairman of the
Metro Manila Authority made by respondents cannot
be applied to uphold the constitutionality of the
challenged proviso since it is not put in issue in the
present case. In the same vein, the argument that if
no elective official may be appointed or designated to
another post then Sec. 8, Art. IX-B, of the Constitution
allowing him to receive double compensation 16
would be useless, is non sequitur since Sec. 8 does
not affect the constitutionality of the subject proviso. In
any case, the Vice-President for example, an elective
official who may be appointed to a cabinet post under
Sec. 3, Art. VII, may receive the compensation
attached to the cabinet position if specifically
authorized by law.
Petitioners also assail the legislative encroachment on
the appointing authority of the President. Section 13,
par. (d), itself vests in the President the power to
appoint the Chairman of the Board and the Chief
Executive Officer of SBMA, although he really has no
choice under the law but to appoint the Mayor of
Olongapo City.
As may be defined, an "appointment" is "[t]he
designation of a person, by the person or persons
having authority therefor, to discharge the duties of
some office or trust," 17 or "[t]he selection or
designation of a person, by the person or persons
having authority therefor, to fill an office or public
function and discharge the duties of the same. 18 In
his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz
defines appointment as "the selection, by the authority
vested with the power, of an individual who is to
exercise the functions of a given office."
Considering that appointment calls for a selection, the
appointing power necessarily exercises a discretion.
According to Woodbury, J., 20 "the choice of a person
to fill an office constitutes the essence of his
appointment," 21 and Mr. Justice Malcolm adds that
an "[a]ppointment to office is intrinsically an executive
act involving the exercise of discretion." 22 In
Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court 23 we held:
The power to appoint is, in essence, discretionary.
The appointing power has the right of choice which he
may exercise freely according to his judgment,
deciding for himself who is best qualified among those
who have the necessary qualifications and eligibilities.
It is a prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power
to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act
of issuing appointment papers to the appointee. In
other words, the choice of the appointee is a
fundamental component of the appointing power.
Hence, when Congress clothes the President with the
power to appoint an officer, it (Congress) cannot at
the same time limit the choice of the President to only
one candidate. Once the power of appointment is
conferred on the President, such conferment
necessarily carries the discretion of whom to appoint.
Even on the pretext of prescribing the qualifications of
the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of
his discretion to pick his own choice. Consequently,
when the qualifications prescribed by Congress can
only be met by one individual, such enactment
effectively eliminates the discretion of the appointing
power to choose and constitutes an irregular
restriction on the power of appointment. 24
In the case at bar, while Congress willed that the
subject posts be filled with a presidential appointee for
the first year of its operations from the effectivity of
R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the
incumbent Mayor of Olongapo City. Since only one
can qualify for the posts in question, the President is
precluded from exercising his discretion to choose
whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is
no power at all and goes against the very nature itself
of appointment.
While it may be viewed that the proviso merely sets
the qualifications of the officer during the first year of
operations of SBMA, i.e., he must be the Mayor of
Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications
where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing
power on the President is a perfectly valid legislative
act, the proviso limiting his choice to one is certainly
an encroachment on his prerogative.
Since the ineligibility of an elective official for
appointment remains all throughout his tenure or
during his incumbency, he may however resign first
from his elective post to cast off the constitutionally-
attached disqualification before he may be considered
fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose
the substitution of the word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to
make possible for one to resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an
executive position.
MR. DAVIDE. Besides, it may turn out in a given case
that because of, say, incapacity, he may leave the
service, but if he is prohibited from being appointed
within the term for which he was elected, we may be
depriving the government of the needed expertise of
an individual. 25
Consequently, as long as he is an incumbent, an
elective official remains ineligible for appointment to
another public office.
Where, as in the case of respondent Gordon, an
incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he
does not automatically forfeit his elective office nor
remove his ineligibility imposed by the Constitution.
On the contrary, since an incumbent elective official is
not eligible to the appointive position, his appointment
or designation thereto cannot be valid in view of his
disqualification or lack of eligibility. This provision
should not be confused with Sec. 13, Art. VI, of the
Constitution where "(n)o Senator or Member of the
House of Representatives may hold any other office
or employment in the Government . . . 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.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino,
Regalado, Davide, Jr., Romero, Nocon, Melo and
Quiason, JJ., concur.
Padilla, J., is on leave.
EN BANC
[G.R. No. L-26608. March 31, 1971.]
PEDRO G. PERALTA, Petitioner, v. AUDITOR
GENERAL ISMAEL MATHAY, Respondent.
Pedro G. Peralta in his own behalf.
Solicitor General Antonio P. Barredo, Assistant
Solicitor General Felicisimo R. Rosete and Solicitor
Bernardo P. Pardo for Respondent.
SYLLABUS
1. POLITICAL LAW; ACCOUNTABILITY OF PUBLIC
OFFICERS; PROHIBITION’ AGAINST DOUBLE
COMPENSATION. — It is expressly provided in the
Constitution: "No officer or employee of the
government shall receive additional or double
compensation unless specifically authorized by law."
This is to manifest a commitment to the fundamental
principle that a public office is a public trust. It is
expected of a government official or employee that he
keeps uppermost in mind the demands of public
welfare. He is there to render public service. He is of
course entitled to be rewarded for the performance of
the functions entrusted to him, but that should not be
the overriding consideration. The intrusion of the
thought of private gain should be unwelcome. The
temptation to further personal ends, public
employment as a means for the acquisition of wealth,
is to be resisted. That at least is the ideal. There is
then to be an awareness on the part of an officer or
employee of the government that he is to receive only
such compensation as may be fixed by law. With such
a realization, he is expected not to avail himself of
devious or circuitous means to increase the
remuneration attached to his position. It is an entirely
different matter if the legislative body would itself
determine for reasons satisfactory to it that he should
receive something more. If it were to be thus though,
there must be a law to that effect. So the Constitution
decrees.
2. ID.; ID.; ID.; APPLICATION; GSIS OFFICERS. —
As is expressly declared in the Constitution, the Civil
Service is to embrace "all branches and subdivisions
of the Government * * *." Conformably to the above,
the Philippine Civil Service, by law, includes ‘’all
branches, subdivisions and instrumentalities of the
Government, including government-owned or
controlled corporations . . . ." Petitioner has not
disputed, nor can he dispute that as a trustee, he was
an officer of the government, the GSIS having been
established in order "to promote the efficiency and
welfare of the employees of the Government of the
Philippines and to replace the [then] pension systems
established in [previous acts].’’ As such officer,
petitioner cannot receive additional or double
compensation unless specifically authorized by law.
3. ID.; ID.; ID.; PER DIEM; INCLUDED. — Under the
GSIS Act. petitioner is entitled as trustee "to a per
diem of P25.00 for each day of actual attendance in
session." As in the case of government controlled
corporations, the term ‘’per diems" was used in the
sense the compensation or remuneration attached to
the office of Trustee. Such is not the meaning usually
attached to it. So it was noted in Lexal Laboratories v.
National Chemical Industries Workers Union, (L-
24632, October 26, 1968, 25 SCRA 668). A "per
diem" is commonly identified with the daily allowance
"for each day he (an officer or employee) was away
from his home base." Its usual signification is thus that
a reimbursement for expenses incurred in the
performance of one’s duties. If employ in a statute, as
in this case, in the concept of remuneration, however,
there must be, to justify an additional compensation, a
specific law that so provides. Otherwise, fidelity to the
constitutional command is lacking.
4. ID.; ID.; ID.; COST OF LIVING ALLOWANCE,
INCLUDED.— A similar approach is called for in
determining the nature of a cost of living allowance. If
it could rightfully be considered as in the nature of a
reimbursement rather than additional emoluments or
perquisites, then the ruling of respondent Auditor
General cannot find support in the Constitution. What
was said in an American State decision has
relevance. It was therein categorically stated "that it is
universally held that an allowance for expenses
incident to the discharge of the duties of office is not
an increase of salary, a perquisite, nor an emolument
of office." To the same effect is this excerpt appearing
later in the opinion: "A careful and, we believe,
exhaustive examination of the decisions fails to
disclose a single case in which it has ever been held
that a legislative act, providing for an allowance, for
expenses incurred in the discharge of official duties,
to a public officer, whose salary or compensation was
fixed at a stated sum, was in violation of provisions
such as are found in many state Constitutions,
forbidding an increase of salary during official terms,
or forbidding the granting of ‘fees,’ ‘perquisites,’ or
‘emoluments’ to such officer. Legislative acts which
directly in terms, or as construed, attempted to
increase such salaries, have been held invalid. But no
decision has been found or, as we believe, can be
found, which holds a legislative act to be
unconstitutional which merely relieves an officer, who
received a fixed salary or compensation, from
expending such salary for expenses incident to the
performance of his official duties." It is worth noting
that there are specific provisions in the applicable
statutes allowing trustees or directors, traveling
expenses which may be collected by the board of
directors of the Philippines Virginia Tobacco
Administration; traveling and subsistence expenses
by the members and board of directors of the Central
Luzon-Cagayan Valley Authority; and traveling and
other necessary expenses by the members of the
Philippine Medical Care Commission. Such provisions
are prompted by what may appear to be an excess of
caution, for the accepted doctrine is that an allowance
to take care of expenses incurred by an official to
enable him to fulfill his task cannot be looked upon as
an additional compensation. Such a principle does not
come to the aid of petitioner though. He was unable to
show that the cost of living allowance received by him
was in the nature of a reimbursement. It did amount
then to an additional compensation.
5. ID.; ID.; ID.; BONUS, INCLUDED. — It is quite
obvious that by its very nature, a bonus partakes of an
additional remuneration or compensation. The very
characterization of what was received by petitioner as
bonuses being intended by way of an incentive to
spur him possibly to more diligent efforts and to add to
the feeling of well-being traditionally associated with
the Christmas season would remove any doubt that
the Auditor General had no choice except to deduct
from petitioner’s gratuity such items.
DECISION
FERNANDO, J.:
There is need in this appeal from a decision of
respondent Auditor General Ismael Mathay for an
inquiry into the meaning and significance of the
constitutional inhibition against an officer or employee
of the government receiving additional or double
compensation unless specifically authorized by law, 1
the decisive legal question being whether or not the
cost of living allowance as well as incentive and
Christmas bonuses paid to petitioner Pedro G.
Peralta, a Trustee of the Government Service
Insurance System, hereinafter called the GSIS, did fall
within such a ban. The answer given by respondent
Auditor General was in the affirmative. After a careful
study of the matter, this Court arrives at a similar
conclusion. Hence this appeal cannot prosper.
The facts are undisputed. As set forth in the brief of
petitioner, the GSIS, on May 17, 1966, in a resolution
duly passed, granted him an optional retirement
gratuity of P40,336.07. Of that amount, he was not
able to collect the sum of P7,032.26, covering
P3,982.26 as cost of living allowance, P1,275.00 as
incentive bonus, and P1,775.00 as Christmas bonus.
Such items were not passed in audit. the view of
respondent Auditor General being that they should be
deducted from his gratuity, although during
petitioner’s incumbency as Trustee, no question was
raised when he was paid such allowance and
bonuses. Respondent Auditor General justified his
action on the ground that they "partake of the nature
of additional compensation," a trustee’s remuneration
being fixed by law in the form of a per diem of P25.00
for every board meeting of the GSIS attended.
Respondent so ruled on June 28, 1966, and
maintained such a stand on September 1, 1966 when
he denied a motion for reconsideration. Hence this
appeal for review filed on September 29, 1966.
The ruling of respondent Auditor General, being in
accordance with what the Constitution requires, must
be upheld.
1. It is expressly provided in the Constitution: "No
officer or employee of the government shall receive
additional or double compensation unless specifically
authorized by law." 2 This is to manifest a
commitment to the fundamental principle that a public
office is a public trust. It is expected of a government
official or employee that he keeps uppermost in mind
the demands of public welfare. He is there to render
public service. He is of course entitled to be rewarded
for the performance of the functions entrusted to him,
but that should not be the overriding consideration.
The intrusion of the thought of private gain should be
unwelcome. The temptation to further personal ends,
public employment as a means for the acquisition of
wealth, is to be resisted. That at least is the ideal.
There is then to be an awareness on the part of an
officer or employee of the government that he is to
receive only such compensation as may be fixed by
law. With such a realization, he is expected not to
avail himself of devious or circuitous means to
increase the remuneration attached to his position. It
is an entirely different matter if the legislative body
would itself determine for reasons satisfactory to it
that he should receive something more. If it were to
be thus though, there must be a law to that effect. So
the Constitution decrees.
As is expressly declared in the Constitution, the Civil
Service is to embrace "all branches and subdivisions
of the Government . . .." 3 Conformably to the above,
the Philippine Civil Service, by law, includes "all
branches, subdivisions and instrumentalities of the
Government, including government-owned or
controlled corporations . . .." 4 Petitioner has not
disputed, nor can he dispute that as a trustee, he was
an officer of the government, the GSIS having been
established in order "to promote the efficiency and
welfare of the employees of the Government of the
Philippines and to replace the [then] pension systems
established in [previous acts.]" 5 As such officer,
petitioner cannot receive additional or double
compensation unless specifically authorized by law.
Under the GSIS Act, he is entitled as trustee "to a per
diem of P25.00 for each day of actual attendance in
session." 6 As in the case of government-controlled
corporations, the term "per diems" was used in the
sense of the compensation or remuneration attached
to the office of Trustee 7 Such is not the meaning
usually attached to it. So it was noted in Lexal
Laboratories v. National Chemical Industries Workers
Union. 8 A "per diem" is commonly identified with the
daily allowance "for each day he (an officer or
employee) was away from his home base." Its usual
signification is thus that of a reimbursement for
expenses incurred in the performance of one’s duties.
If employed in a statute, as in this case, in the concept
of remuneration, however, there must be, to justify an
additional compensation, a specific law that so
provides. Otherwise, fidelity to the constitutional
command is lacking.
A similar approach is called for in determining the
nature of a cost of living allowance. If it could rightfully
be considered as in the nature of a reimbursement
rather than additional emoluments or perquisites, then
the ruling of respondent Auditor General cannot find
support in the Constitution. What was said in an
American State decision’ 9 has relevance. It was
therein categorically stated "that it is universally held
that an allowance for expenses incident to the
discharge of the duties of office is not an increase of
salary, a perquisite, nor an emolument of office." 10
To the same effect is this excerpt appearing later in
the opinion: "A careful and, we believe, exhaustive
examination of the decisions fails to disclose a single
case in which it has ever been held that a legislative
act, providing for an allowance, for expenses incurred
in the discharge of official duties, to a public officer,
whose salary or compensation was fixed at a stated
sum, was in violation of provisions such as are found
in many state Constitutions, forbidding an increase of
salary official terms, or forbidding the granting of
`fees,’ `perquisites,’ or `emoluments’ to such officer.
Legislative acts which directly in terms, or as
construed, attempted to increase such salaries, have
been held invalid. But no decision has been found or,
as we believe, can be found, which holds a legislative
act to be unconstitutional which merely relieves an
officer, who received a fixed salary or compensation,
from expending such salary for expenses incident to
the performance of his official duties." 11 It is worth
noting that there are specific provisions in the
applicable statutes allowing trustees or directors,
traveling expenses which may be collected by the
board of directors of the Philippine Virginia Tobacco
Administration; 12 traveling and subsistence
expenses by the members and board of directors of
the Central Luzon-Cagayan Valley Authority; 13 and
traveling and other necessary expenses by the
members of the Philippine Medical Care Commission.
14 Such provisions are prompted by what may appear
to be an excess of caution, for the accepted doctrine
is that an allowance to take care of expenses incurred
by an official to enable him to fulfill his task cannot be
looked upon as an additional compensation. Such a
principle does not come to the aid of petitioner
though. He was unable to show that the cost of living
allowance received by him was in the nature of a
reimbursement. It did amount then to an additional
compensation.
So it is in the case of the bonuses received by him. It
is quite obvious that by its very nature, a bonus
partakes of an additional remuneration or
compensation. 15 The very characterization of what
was received by petitioner as bonuses being intended
by way of an incentive to spur him possibly to more
diligent efforts and to add to the feeling of well-being
traditionally associated with the Christmas season
would remove any doubt that the Auditor General had
no choice except to deduct from petitioner’s gratuity
such items.
2. It is apparent that respondent Auditor General
accorded respect and deference to a constitutional
command. To impute legal error to his actuation is to
be oblivious of the fundamental postulate that the
Constitution is supreme. Obedience is mandatory. It
cannot be disregarded. Every public official is sworn
to uphold it. There can be no justification for any other
course of action. To condone whether by intent or
inadvertence any deviation from what it prescribes is
to display less than full fealty to the cardinal precept of
our polity. A mistaken sympathy for the situation in
which the petitioner did find himself cannot suffice to
confer authority on respondent to grant what is asked
of him in view of the constitutional ban. Both
petitioner, who was himself once a public official, and
respondent Auditor General must be cognizant of the
paramount character of the Constitution. Thus
everyone in the public service is only the more
strongly bound to submit to such supremacy and
abide by the limitations which it imposes upon every
aspect of the authority thus conferred. 16
WHEREFORE, the decision of the Auditor General of
June 28, 1966, as reiterated in its order denying the
motion for reconsideration of September 1, 1966, is
affirmed. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Castro, Villamor and Makasiar, JJ., concur.
Teehankee, J., took no part.
Barredo, J., did not take part.
G.R. No. 149036 April 2, 2002
MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z.
BORRA, FLORENTINO A. TUASON, JR., VELMA J.
CINCO, and GIDEON C. DE GUZMAN in his capacity
as Officer-In-Charge, Finance Services Department of
the Commission on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with
prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under
Rule 65 of the 1997 Rules of Civil Procedure.
Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for
brevity) questions the constitutionality of the
appointment and the right to hold office of the
following: (1) Alfredo L. Benipayo ("Benipayo" for
brevity) as Chairman of the Commission on Elections
("COMELEC" for brevity); and (2) Resurreccion Z.
Borra ("Borra" for brevity) and Florentino A. Tuason,
Jr. ("Tuason" for brevity) as COMELEC
Commissioners. Petitioner also questions the legality
of the appointment of Velma J. Cinco1 ("Cinco" for
brevity) as Director IV of the COMELEC’s Education
and Information Department ("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc
appointed petitioner as "Acting Director IV" of the EID.
On February 15, 2000, then Chairperson Harriet O.
Demetriou renewed the appointment of petitioner as
Director IV of EID in a "Temporary" capacity. On
February 15, 2001, Commissioner Rufino S.B. Javier
renewed again the appointment of petitioner to the
same position in a "Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal
Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman,3 and Borra4 and Tuason5 as COMELEC
Commissioners, each for a term of seven years and
all expiring on February 2, 2008. Benipayo took his
oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths
of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted
to the Commission on Appointments on May 22, 2001
the ad interim appointments of Benipayo, Borra and
Tuason for confirmation.6 However, the Commission
on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad
interim appointments of Benipayo, Borra and Tuason
to the same positions and for the same term of seven
years, expiring on February 2, 2008.7 They took their
oaths of office for a second time. The Office of the
President transmitted on June 5, 2001 their
appointments to the Commission on Appointments for
confirmation.8
Congress adjourned before the Commission on
Appointments could act on their appointments. Thus,
on June 8, 2001, President Macapagal Arroyo
renewed again the ad interim appointments of
Benipayo, Borra and Tuason to the same positions.9
The Office of the President submitted their
appointments for confirmation to the Commission on
Appointments.10 They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo
issued a Memorandum dated April 11, 200111
addressed to petitioner as Director IV of the EID and
to Cinco as Director III also of the EID, designating
Cinco Officer-in-Charge of the EID and reassigning
petitioner to the Law Department. COMELEC EID
Commissioner-in-Charge Mehol K. Sadain objected to
petitioner’s reassignment in a Memorandum dated
April 14, 200112 addressed to the COMELEC en
banc. Specifically, Commissioner Sadain questioned
Benipayo’s failure to consult the Commissioner-in-
Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to
reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.13 Petitioner
cited Civil Service Commission Memorandum Circular
No. 7 dated April 10, 2001, reminding heads of
government offices that "transfer and detail of
employees are prohibited during the election period
beginning January 2 until June 13, 2001." Benipayo
denied her request for reconsideration on April 18,
2001,14 citing COMELEC Resolution No. 3300 dated
November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections
by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other
election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill
new positions and transfer or reassign its personnel,
when necessary in the effective performance of its
mandated functions during the prohibited period,
provided that the changes in the assignment of its
field personnel within the thirty-day period before
election day shall be effected after due notice and
hearing."

Petitioner appealed the denial of her request for
reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.15 Petitioner also
filed an administrative and criminal complaint16 with
the Law Department17 against Benipayo, alleging that
her reassignment violated Section 261 (h) of the
Omnibus Election Code, COMELEC Resolution No.
3258, Civil Service Memorandum Circular No. 07, s.
001, and other pertinent administrative and civil
service laws, rules and regulations.
During the pendency of her complaint before the Law
Department, petitioner filed the instant petition
questioning the appointment and the right to remain in
office of Benipayo, Borra and Tuason, as Chairman
and Commissioners of the COMELEC, respectively.
Petitioner claims that the ad interim appointments of
Benipayo, Borra and Tuason violate the constitutional
provisions on the independence of the COMELEC, as
well as on the prohibitions on temporary appointments
and reappointments of its Chairman and members.
Petitioner also assails as illegal her removal as
Director IV of the EID and her reassignment to the
Law Department. Simultaneously, petitioner
challenges the designation of Cinco as Officer-in-
Charge of the EID. Petitioner, moreover, questions
the legality of the disbursements made by COMELEC
Finance Services Department Officer-in-Charge
Gideon C. De Guzman to Benipayo, Borra and
Tuason by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President
Macapagal Arroyo renewed once again the ad interim
appointments of Benipayo as COMELEC Chairman
and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on
February 2, 2008.18 They all took their oaths of office
anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the
requirements before this Court may exercise its power
of judicial review in constitutional cases;
2. Whether or not the assumption of office by
Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President
amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and
the first assumption of office by Benipayo, Borra and
Tuason are legal, whether or not the renewal of their
ad interim appointments and subsequent assumption
of office to the same positions violate the prohibition
on reappointment under Section 1 (2), Article IX-C of
the Constitution;
4. Whether or not Benipayo’s removal of petitioner
from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and
without authority, having been done without the
approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the
COMELEC’s Finance Services Department, in
continuing to make disbursements in favor of
Benipayo, Borra, Tuason and Cinco, is acting in
excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all
the four requisites before this Court may exercise its
power of judicial review in constitutional cases. Out of
respect for the acts of the Executive department,
which is co-equal with this Court, respondents urge
this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued
by the President to Benipayo, Borra and Tuason
unless all the four requisites are present. These are:
(1) the existence of an actual and appropriate
controversy; (2) a personal and substantial interest of
the party raising the constitutional issue; (3) the
exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is
the lis mota of the case.19 Respondents argue that
the second, third and fourth requisites are absent in
this case. Respondents maintain that petitioner does
not have a personal and substantial interest in the
case because she has not sustained a direct injury as
a result of the ad interim appointments of Benipayo,
Borra and Tuason and their assumption of office.
Respondents point out that petitioner does not claim
to be lawfully entitled to any of the positions assumed
by Benipayo, Borra or Tuason. Neither does petitioner
claim to be directly injured by the appointments of
these three respondents.
Respondents also contend that petitioner failed to
question the constitutionality of the ad interim
appointments at the earliest opportunity. Petitioner
filed the petition only on August 3, 2001 despite the
fact that the ad interim appointments of Benipayo,
Borra and Tuason were issued as early as March 22,
2001. Moreover, the petition was filed after the third
time that these three respondents were issued ad
interim appointments.
Respondents insist that the real issue in this case is
the legality of petitioner’s reassignment from the EID
to the Law Department. Consequently, the
constitutionality of the ad interim appointments is not
the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where
she was Acting Director, to the Law Department,
where she was placed on detail service.20
Respondents claim that the reassignment was
"pursuant to x x x Benipayo’s authority as Chairman
of the Commission on Elections, and as the
Commission’s Chief Executive Officer."21 Evidently,
respondents anchor the legality of petitioner’s
reassignment on Benipayo’s authority as Chairman of
the COMELEC. The real issue then turns on whether
or not Benipayo is the lawful Chairman of the
COMELEC. Even if petitioner is only an Acting
Director of the EID, her reassignment is without legal
basis if Benipayo is not the lawful COMELEC
Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful
COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioner’s
reassignment is legal and she has no cause to
complain provided the reassignment is in accordance
with the Civil Service Law. Clearly, petitioner has a
personal and material stake in the resolution of the
constitutionality of Benipayo’s assumption of office.
Petitioner’s personal and substantial injury, if
Benipayo is not the lawful COMELEC Chairman,
clothes her with the requisite locus standi to raise the
constitutional issue in this petition.
Respondents harp on petitioner’s belated act of
questioning the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason.
Petitioner filed the instant petition only on August 3,
2001, when the first ad interim appointments were
issued as early as March 22, 2001. However, it is not
the date of filing of the petition that determines
whether the constitutional issue was raised at the
earliest opportunity. The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings
before a competent court that can resolve the same,
such that, "if it is not raised in the pleadings, it cannot
be considered at the trial, and, if not considered at the
trial, it cannot be considered on appeal."22 Petitioner
questioned the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason when
she filed her petition before this Court, which is the
earliest opportunity for pleading the constitutional
issue before a competent body. Furthermore, this
Court may determine, in the exercise of sound
discretion, the time when a constitutional issue may
be passed upon.23 There is no doubt petitioner raised
the constitutional issue on time.
Moreover, the legality of petitioner’s reassignment
hinges on the constitutionality of Benipayo’s ad
interim appointment and assumption of office. Unless
the constitutionality of Benipayo’s ad interim
appointment and assumption of office is resolved, the
legality of petitioner’s reassignment from the EID to
the Law Department cannot be determined. Clearly,
the lis mota of this case is the very constitutional issue
raised by petitioner.
In any event, the issue raised by petitioner is of
paramount importance to the public. The legality of
the directives and decisions made by the COMELEC
in the conduct of the May 14, 2001 national elections
may be put in doubt if the constitutional issue raised
by petitioner is left unresolved. In keeping with this
Court’s duty to determine whether other agencies of
government have remained within the limits of the
Constitution and have not abused the discretion given
them, this Court may even brush aside technicalities
of procedure and resolve any constitutional issue
raised.24 Here the petitioner has complied with all the
requisite technicalities. Moreover, public interest
requires the resolution of the constitutional issue
raised by petitioner.
Second Issue: The Nature of an Ad Interim
Appointment
Petitioner argues that an ad interim appointment to
the COMELEC is a temporary appointment that is
prohibited by Section 1 (2), Article IX-C of the
Constitution, which provides as follows:
"The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven
years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two
Members for five years, and the last Members for
three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting
capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim
appointment can be withdrawn or revoked by the
President at her pleasure, and can even be
disapproved or simply by-passed by the Commission
on Appointments. For this reason, petitioner claims
that an ad interim appointment is temporary in
character and consequently prohibited by the last
sentence of Section 1 (2), Article IX-C of the
Constitution.
Based on petitioner’s theory, there can be no ad
interim appointment to the COMELEC or to the other
two constitutional commissions, namely the Civil
Service Commission and the Commission on Audit.
The last sentence of Section 1 (2), Article IX-C of the
Constitution is also found in Article IX-B and Article
IX-D providing for the creation of the Civil Service
Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of
Section 1 (2) of Article IX-C to mean that the ad
interim appointee cannot assume office until his
appointment is confirmed by the Commission on
Appointments for only then does his appointment
become permanent and no longer temporary in
character.
The rationale behind petitioner’s theory is that only an
appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the
COMELEC. A confirmed appointee is beyond the
influence of the President or members of the
Commission on Appointments since his appointment
can no longer be recalled or disapproved. Prior to his
confirmation, the appointee is at the mercy of both the
appointing and confirming powers since his
appointment can be terminated at any time for any
cause. In the words of petitioner, a Sword of
Damocles hangs over the head of every appointee
whose confirmation is pending with the Commission
on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent
appointment because it takes effect immediately and
can no longer be withdrawn by the President once the
appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on
Appointments does not alter its permanent character.
The Constitution itself makes an ad interim
appointment permanent in character by making it
effective until disapproved by the Commission on
Appointments or until the next adjournment of
Congress. The second paragraph of Section 16,
Article VII of the Constitution provides as follows:
"The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective
until such disapproval or next adjournment, signifying
that it can no longer be withdrawn or revoked by the
President. The fear that the President can withdraw or
revoke at any time and for any reason an ad interim
appointment is utterly without basis.
More than half a century ago, this Court had already
ruled that an ad interim appointment is permanent in
character. In Summers vs. Ozaeta,25 decided on
October 25, 1948, we held that:
"x x x an ad interim appointment is one made in
pursuance of paragraph (4), Section 10, Article VII of
the Constitution, which provides that the ‘President
shall have the power to make appointments during the
recess of the Congress, but such appointments shall
be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the
Congress.’ It is an appointment permanent in nature,
and the circumstance that it is subject to confirmation
by the Commission on Appointments does not alter its
permanent character. An ad interim appointment is
disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of
course distinguishable from an ‘acting’ appointment
which is merely temporary, good until another
permanent appointment is issued." (Emphasis
supplied)
The Constitution imposes no condition on the
effectivity of an ad interim appointment, and thus an
ad interim appointment takes effect immediately. The
appointee can at once assume office and exercise, as
a de jure officer, all the powers pertaining to the office.
In Pacete vs. Secretary of the Commission on
Appointments,26 this Court elaborated on the nature
of an ad interim appointment as follows:
"A distinction is thus made between the exercise of
such presidential prerogative requiring confirmation by
the Commission on Appointments when Congress is
in session and when it is in recess. In the former, the
President nominates, and only upon the consent of
the Commission on Appointments may the person
thus named assume office. It is not so with reference
to ad interim appointments. It takes effect at once.
The individual chosen may thus qualify and perform
his function without loss of time. His title to such office
is complete. In the language of the Constitution, the
appointment is effective ‘until disapproval by the
Commission on Appointments or until the next
adjournment of the Congress.’"
Petitioner cites Black’s Law Dictionary which defines
the term "ad interim" to mean "in the meantime" or "for
the time being." Hence, petitioner argues that an ad
interim appointment is undoubtedly temporary in
character. This argument is not new and was
answered by this Court in Pamantasan ng Lungsod
ng Maynila vs. Intermediate Appellate Court,27 where
we explained that:
"x x x From the arguments, it is easy to see why the
petitioner should experience difficulty in
understanding the situation. Private respondent had
been extended several ‘ad interim’ appointments
which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the
literal translation of the word ‘ad interim’ which creates
such belief. The term is defined by Black to mean "in
the meantime" or "for the time being". Thus, an officer
ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the absence
or temporary incapacity of its regular incumbent
(Black’s Law Dictionary, Revised Fourth Edition,
1978). But such is not the meaning nor the use
intended in the context of Philippine law. In referring
to Dr. Esteban’s appointments, the term is not
descriptive of the nature of the appointments given to
him. Rather, it is used to denote the manner in which
said appointments were made, that is, done by the
President of the Pamantasan in the meantime, while
the Board of Regents, which is originally vested by the
University Charter with the power of appointment, is
unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in
letters of appointment signed by the President, means
a permanent appointment made by the President in
the meantime that Congress is in recess. It does not
mean a temporary appointment that can be withdrawn
or revoked at any time. The term, although not found
in the text of the Constitution, has acquired a definite
legal meaning under Philippine jurisprudence. The
Court had again occasion to explain the nature of an
ad interim appointment in the more recent case of
Marohombsar vs. Court of Appeals,28 where the
Court stated:
"We have already mentioned that an ad interim
appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity,
rather it denotes the manner in which the appointment
was made. In the instant case, the appointment
extended to private respondent by then MSU
President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of
private respondent’s appointment as Executive
Assistant II was recognized and attested to by the
Civil Service Commission Regional Office No. 12.
Petitioner’s submission that private respondent’s ad
interim appointment is synonymous with a temporary
appointment which could be validly terminated at any
time is clearly untenable. Ad interim appointments are
permanent but their terms are only until the Board
disapproves them." (Emphasis supplied)
An ad interim appointee who has qualified and
assumed office becomes at that moment a
government employee and therefore part of the civil
service. He enjoys the constitutional protection that
"[n]o officer or employee in the civil service shall be
removed or suspended except for cause provided by
law."29 Thus, an ad interim appointment becomes
complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of
an ad interim appointment is possible only if it is
communicated to the appointee before the moment he
qualifies, and any withdrawal or revocation thereafter
is tantamount to removal from office.30 Once an
appointee has qualified, he acquires a legal right to
the office which is protected not only by statute but
also by the Constitution. He can only be removed for
cause, after notice and hearing, consistent with the
requirements of due process.
An ad interim appointment can be terminated for two
causes specified in the Constitution. The first cause is
the disapproval of his ad interim appointment by the
Commission on Appointments. The second cause is
the adjournment of Congress without the Commission
on Appointments acting on his appointment. These
two causes are resolutory conditions expressly
imposed by the Constitution on all ad interim
appointments. These resolutory conditions constitute,
in effect, a Sword of Damocles over the heads of ad
interim appointees. No one, however, can complain
because it is the Constitution itself that places the
Sword of Damocles over the heads of the ad interim
appointees.
While an ad interim appointment is permanent and
irrevocable except as provided by law, an
appointment or designation in a temporary or acting
capacity can be withdrawn or revoked at the pleasure
of the appointing power.31 A temporary or acting
appointee does not enjoy any security of tenure, no
matter how briefly. This is the kind of appointment that
the Constitution prohibits the President from making
to the three independent constitutional commissions,
including the COMELEC. Thus, in Brillantes vs.
Yorac,32 this Court struck down as unconstitutional
the designation by then President Corazon Aquino of
Associate Commissioner Haydee Yorac as Acting
Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms
essentially temporary and therefore revocable at will.
No cause need be established to justify its revocation.
Assuming its validity, the designation of the
respondent as Acting Chairman of the Commission on
Elections may be withdrawn by the President of the
Philippines at any time and for whatever reason she
sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from
challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the
independence of the Commission on Elections,
foremost among which is the security of tenure of its
members. That guarantee is not available to the
respondent as Acting Chairman of the Commission on
Elections by designation of the President of the
Philippines."
"FR. BERNAS: X x x our compulsory recess now is
only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments?
Earlier, in Nacionalista Party vs. Bautista,33 a case Perhaps there should be a little discussion on that.
decided under the 1935 Constitution, which did not
have a provision prohibiting temporary or acting
appointments to the COMELEC, this Court
nevertheless declared unconstitutional the xxx
designation of the Solicitor General as acting member
of the COMELEC. This Court ruled that the
designation of an acting Commissioner would
undermine the independence of the COMELEC and
MS. AQUINO: My concern is that unless this problem
hence violate the Constitution. We declared then: "It
is addressed, this might present problems in terms of
would be more in keeping with the intent, purpose and
anticipating interruption of government business,
aim of the framers of the Constitution to appoint a
considering that we are not certain of the length of
permanent Commissioner than to designate one to
involuntary recess or adjournment of the Congress.
act temporarily." (Emphasis supplied)
We are certain, however, of the involuntary
adjournment of the Congress which is 30 days, but we
cannot leave to conjecture the matter of involuntary
recess.
In the instant case, the President did in fact appoint
permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the
Commission on Appointments. Benipayo, Borra and
FR. BERNAS: That is correct, but we are trying to
Tuason were extended permanent appointments
look for a formula. I wonder if the Commissioner has a
during the recess of Congress. They were not
formula x x x.
appointed or designated in a temporary or acting
capacity, unlike Commissioner Haydee Yorac in
Brillantes vs. Yorac34 and Solicitor General Felix
Bautista in Nacionalista Party vs. Bautista.35 The ad
interim appointments of Benipayo, Borra and Tuason xxx
are expressly allowed by the Constitution which
authorizes the President, during the recess of
Congress, to make appointments that take effect
immediately. MR. BENGZON: Madam President, apropos of the
matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner Aquino
and I propose the following amendment as the last
While the Constitution mandates that the COMELEC paragraph of Section 16, the wordings of which are in
"shall be independent"36 , this provision should be the 1935 Constitution: THE PRESIDENT SHALL
harmonized with the President’s power to extend ad HAVE THE POWER TO MAKE APPOINTMENTS
interim appointments. To hold that the independence DURING THE RECESS OF CONGRESS WHETHER
of the COMELEC requires the Commission on IT BE VOLUNTARY OR COMPULSORY BUT SUCH
Appointments to first confirm ad interim appointees APPOINTMENTS SHALL BE EFFECTIVE ONLY
before the appointees can assume office will negate UNTIL DISAPPROVAL BY THE COMMISSION ON
the President’s power to make ad interim APPOINTMENTS OR UNTIL THE NEXT
appointments. This is contrary to the rule on statutory ADJOURNMENT OF THE CONGRESS.
construction to give meaning and effect to every
provision of the law. It will also run counter to the clear
intent of the framers of the Constitution.
This is otherwise called the ad interim appointments.

The original draft of Section 16, Article VII of the

Constitution - on the nomination of officers subject to xxx
confirmation by the Commission on Appointments -
did not provide for ad interim appointments. The
original intention of the framers of the Constitution
was to do away with ad interim appointments because THE PRESIDENT: Is there any objection to the
the plan was for Congress to remain in session proposed amendment of Commissioners Aquino and
throughout the year except for a brief 30-day Bengzon, adding a paragraph to the last paragraph of
compulsory recess. However, because of the need to Section 16? (Silence) The Chair hears none; the
avoid disruptions in essential government services, amendment is approved."37 (Emphasis supplied)
the framers of the Constitution thought it wise to
reinstate the provisions of the 1935 Constitution on ad
interim appointments. The following discussion during
the deliberations of the Constitutional Commission
elucidates this:
Clearly, the reinstatement in the present Constitution
of the ad interim appointing power of the President
was for the purpose of avoiding interruptions in vital
government services that otherwise would result from
prolonged vacancies in government offices, including
the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes,38 decided under
the 1935 Constitution, Justice Roberto Concepcion,
Jr. explained the rationale behind ad interim
appointments in this manner:
"Now, why is the lifetime of ad interim appointments
so limited? Because, if they expired before the
session of Congress, the evil sought to be avoided –
interruption in the discharge of essential functions –
may take place. Because the same evil would result if
the appointments ceased to be effective during the
session of Congress and before its adjournment.
Upon the other hand, once Congress has adjourned,
the evil aforementioned may easily be conjured by the
issuance of other ad interim appointments or
reappointments." (Emphasis supplied)
Indeed, the timely application of the last sentence of
Section 16, Article VII of the Constitution barely
avoided the interruption of essential government
services in the May 2001 national elections. Following
the decision of this Court in Gaminde vs. Commission
on Appointments,39 promulgated on December 13,
2000, the terms of office of constitutional officers first
appointed under the Constitution would have to be
counted starting February 2, 1987, the date of
ratification of the Constitution, regardless of the date
of their actual appointment. By this reckoning, the
terms of office of three Commissioners of the
COMELEC, including the Chairman, would end on
February 2, 2001.40
Then COMELEC Chairperson Harriet O. Demetriou
was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February
15, 2002,41 the original expiry date of the term of her
predecessor, Justice Bernardo P. Pardo, who was
elevated to this Court. The original expiry date of the
term of Commissioner Teresita Dy-Liacco Flores was
also February 15, 2002, while that of Commissioner
Julio F. Desamito was November 3, 2001.42 The
original expiry dates of the terms of office of
Chairperson Demetriou and Commissioners Flores
and Desamito were therefore supposed to fall after
the May 2001 elections. Suddenly and unexpectedly,
because of the Gaminde ruling, there were three
vacancies in the seven-person COMELEC, with
national elections looming less than three and one-
half months away. To their credit, Chairperson
Demetriou and Commissioner Flores vacated their
offices on February 2, 2001 and did not question any
more before this Court the applicability of the
Gaminde ruling to their own situation.
In a Manifestation43 dated December 28, 2000 filed
with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on
February 2, 2001, as she believed any delay in
choosing her successor might create a "constitutional
crisis" in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to
file a petition for intervention44 in the Gaminde case
but this Court denied the intervention. Thus,
Commissioner Desamito also vacated his office on
February 2, 2001.
During an election year, Congress normally goes on
voluntary recess between February and June
considering that many of the members of the House
of Representatives and the Senate run for re-election.
In 2001, the Eleventh Congress adjourned from
January 9, 2001 to June 3, 2001.45 Concededly,
there was no more time for Benipayo, Borra and
Tuason, who were originally extended ad interim
appointments only on March 22, 2001, to be
confirmed by the Commission on Appointments
before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad
interim appointments to fill up the three vacancies in
the COMELEC, there would only have been one
division functioning in the COMELEC instead of two
during the May 2001 elections. Considering that the
Constitution requires that "all x x x election cases shall
be heard and decided in division",46 the remaining
one division would have been swamped with election
cases. Moreover, since under the Constitution
motions for reconsideration "shall be decided by the
Commission en banc", the mere absence of one of
the four remaining members would have prevented a
quorum, a less than ideal situation considering that
the Commissioners are expected to travel around the
country before, during and after the elections. There
was a great probability that disruptions in the conduct
of the May 2001 elections could occur because of the
three vacancies in the COMELEC. The successful
conduct of the May 2001 national elections, right after
the tumultuous EDSA II and EDSA III events, was
certainly essential in safeguarding and strengthening
our democracy.
Evidently, the exercise by the President in the instant
case of her constitutional power to make ad interim
appointments prevented the occurrence of the very
evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power
to make ad interim appointments is lodged in the
President to be exercised by her in her sound
judgment. Under the second paragraph of Section 16,
Article VII of the Constitution, the President can
choose either of two modes in appointing officials who
are subject to confirmation by the Commission on
Appointments. First, while Congress is in session, the
President may nominate the prospective appointee,
and pending consent of the Commission on
Appointments, the nominee cannot qualify and
assume office. Second, during the recess of
Congress, the President may extend an ad interim
appointment which allows the appointee to
immediately qualify and assume office.
 Tuason, as COMELEC Chairman and
Commissioners, respectively, do not constitute
Whether the President chooses to nominate the temporary or acting appointments prohibited by
prospective appointee or extend an ad interim Section 1 (2), Article IX-C of the Constitution.
appointment is a matter within the prerogative of the
President because the Constitution grants her that
power. This Court cannot inquire into the propriety of
the choice made by the President in the exercise of Third Issue: The Constitutionality of Renewals of
her constitutional power, absent grave abuse of Appointments
discretion amounting to lack or excess of jurisdiction
on her part, which has not been shown in the instant
case.
Petitioner also agues that assuming the first ad
interim appointments and the first assumption of office
by Benipayo, Borra and Tuason are constitutional, the
The issuance by Presidents of ad interim renewal of the their ad interim appointments and their
appointments to the COMELEC is a long-standing subsequent assumption of office to the same
practice. Former President Corazon Aquino issued an positions violate the prohibition on reappointment
ad interim appointment to Commissioner Alfredo E. under Section 1 (2), Article IX-C of the Constitution,
Abueg.47 Former President Fidel V. Ramos extended which provides as follows:
ad interim appointments to Commissioners Julio F.
Desamito, Japal M. Guiani, Graduacion A. Reyes-
Claravall and Manolo F. Gorospe.48 Former
President Joseph Estrada also extended ad interim
"The Chairman and the Commissioners shall be
appointments to Commissioners Abdul Gani M.
appointed by the President with the consent of the
Marohombsar, Luzviminda Tancangco, Mehol K.
Commission on Appointments for a term of seven
Sadain and Ralph C. Lantion.49
years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two
Members for five years, and the last members for
three years, without reappointment. X x x." (Emphasis
The President’s power to extend ad interim supplied)
appointments may indeed briefly put the appointee at
the mercy of both the appointing and confirming
powers. This situation, however, is only for a short
period - from the time of issuance of the ad interim
Petitioner theorizes that once an ad interim appointee
appointment until the Commission on Appointments
is by-passed by the Commission on Appointments, his
gives or withholds its consent. The Constitution itself
ad interim appointment can no longer be renewed
sanctions this situation, as a trade-off against the evil
because this will violate Section 1 (2), Article IX-C of
of disruptions in vital government services. This is
the Constitution which prohibits reappointments.
also part of the check-and-balance under the
Petitioner asserts that this is particularly true to
separation of powers, as a trade-off against the evil of
permanent appointees who have assumed office,
granting the President absolute and sole power to
which is the situation of Benipayo, Borra and Tuason
appoint. The Constitution has wisely subjected the
if their ad interim appointments are deemed
President’s appointing power to the checking power of
permanent in character.
the legislature.

There is no dispute that an ad interim appointee

This situation, however, does not compromise the
disapproved by the Commission on Appointments can
independence of the COMELEC as a constitutional
no longer be extended a new appointment. The
body. The vacancies in the COMELEC are precisely
disapproval is a final decision of the Commission on
staggered to insure that the majority of its members
Appointments in the exercise of its checking power on
hold confirmed appointments, and not one President
the appointing authority of the President. The
will appoint all the COMELEC members.50 In the
disapproval is a decision on the merits, being a
instant case, the Commission on Appointments had
refusal by the Commission on Appointments to give
long confirmed four51 of the incumbent COMELEC
its consent after deliberating on the qualifications of
members, comprising a majority, who could now be
the appointee. Since the Constitution does not provide
removed from office only by impeachment. The
for any appeal from such decision, the disapproval is
special constitutional safeguards that insure the
final and binding on the appointee as well as on the
independence of the COMELEC remain in place.52
appointing power. In this instance, the President can
The COMELEC enjoys fiscal autonomy, appoints its
no longer renew the appointment not because of the
own officials and employees, and promulgates its own
constitutional prohibition on reappointment, but
rules on pleadings and practice. Moreover, the
because of a final decision by the Commission on
salaries of COMELEC members cannot be decreased
Appointments to withhold its consent to the
during their tenure.
appointment.

In fine, we rule that the ad interim appointments

extended by the President to Benipayo, Borra and
An ad interim appointment that is by-passed because
of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-
passed appointment is one that has not been finally
acted upon on the merits by the Commission on
Appointments at the close of the session of Congress.
There is no final decision by the Commission on
Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent
such decision, the President is free to renew the ad
interim appointment of a by-passed appointee. This is
recognized in Section 17 of the Rules of the
Commission on Appointments, which provides as
follows:
"Section 17. Unacted Nominations or Appointments
Returned to the President. Nominations or
appointments submitted by the President of the
Philippines which are not finally acted upon at the
close of the session of Congress shall be returned to
the President and, unless new nominations or
appointments are made, shall not again be
considered by the Commission." (Emphasis supplied)
Hence, under the Rules of the Commission on
Appointments, a by-passed appointment can be
considered again if the President renews the
appointment.
It is well settled in this jurisdiction that the President
can renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly
explained in his concurring opinion in Guevara vs.
Inocentes53 why by-passed ad interim appointees
could be extended new appointments, thus:
"In short, an ad interim appointment ceases to be
effective upon disapproval by the Commission,
because the incumbent can not continue holding
office over the positive objection of the Commission. It
ceases, also, upon "the next adjournment of the
Congress", simply because the President may then
issue new appointments - not because of implied
disapproval of the Commission deduced from its
inaction during the session of Congress, for, under the
Constitution, the Commission may affect adversely
the interim appointments only by action, never by
omission. If the adjournment of Congress were an
implied disapproval of ad interim appointments made
prior thereto, then the President could no longer
appoint those so by-passed by the Commission. But,
the fact is that the President may reappoint them, thus
clearly indicating that the reason for said termination
of the ad interim appointments is not the disapproval
thereof allegedly inferred from said omission of the
Commission, but the circumstance that upon said
adjournment of the Congress, the President is free to
make ad interim appointments or reappointments."
(Emphasis supplied)
Guevara was decided under the 1935 Constitution
from where the second paragraph of Section 16,
Article VII of the present Constitution on ad interim
appointments was lifted verbatim.54 The
jurisprudence under the 1935 Constitution governing
ad interim appointments by the President is doubtless
applicable to the present Constitution. The
established practice under the present Constitution is
that the President can renew the appointments of by-
passed ad interim appointees. This is a continuation
of the well-recognized practice under the 1935
Constitution, interrupted only by the 1973 Constitution
which did not provide for a Commission on
Appointments but vested sole appointing power in the
President.
The prohibition on reappointment in Section 1 (2),
Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments.
A disapproved ad interim appointment cannot be
revived by another ad interim appointment because
the disapproval is final under Section 16, Article VII of
the Constitution, and not because a reappointment is
prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can
be revived by a new ad interim appointment because
there is no final disapproval under Section 16, Article
VII of the Constitution, and such new appointment will
not result in the appointee serving beyond the fixed
term of seven years.
Section 1 (2), Article IX-C of the Constitution provides
that "[t]he Chairman and the Commissioners shall be
appointed x x x for a term of seven years without
reappointment." (Emphasis supplied) There are four
situations where this provision will apply. The first
situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC,
whether as a member or as a chairman, because he
will then be actually serving more than seven years.
The second situation is where the appointee, after
confirmation, serves a part of his term and then
resigns before his seven-year term of office ends.
Such person cannot be reappointed, whether as a
member or as a chair, to a vacancy arising from
retirement because a reappointment will result in the
appointee also serving more than seven years. The
third situation is where the appointee is confirmed to
serve the unexpired term of someone who died or
resigned, and the appointee completes the unexpired
term. Such person cannot be reappointed, whether as
a member or chair, to a vacancy arising from
retirement because a reappointment will result in the
appointee also serving more than seven years.
The fourth situation is where the appointee has
previously served a term of less than seven years,
and a vacancy arises from death or resignation. Even
if it will not result in his serving more than seven
years, a reappointment of such person to serve an
unexpired term is also prohibited because his
situation will be similar to those appointed under the
second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first
appointees under the Constitution whose terms of
office are less than seven years, but are barred from
ever being reappointed under any situation. Not one
of these four situations applies to the case of
Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear
that any person who has served any term of office as
COMELEC member – whether for a full term of seven
years, a truncated term of five or three years, or even
for an unexpired term of any length of time – can no
longer be reappointed to the COMELEC.
Commissioner Foz succinctly explained this intent in
this manner:
"MR. FOZ. But there is the argument made in the
concurring opinion of Justice Angelo Bautista in the
case of Visarra vs. Miraflor, to the effect that the
prohibition on reappointment applies only when the
term or tenure is for seven years. But in cases where
the appointee serves only for less than seven years,
he would be entitled to reappointment. Unless we put
the qualifying words "without reappointment" in the
case of those appointed, then it is possible that an
interpretation could be made later on their case, they
can still be reappointed to serve for a total of seven
years.
Precisely, we are foreclosing that possibility by
making it clear that even in the case of those first
appointed under the Constitution, no reappointment
can be made."55 (Emphasis supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in
his concurring opinion, quoted Nacionalista vs. De
Vera57 that a "[r]eappointment is not prohibited when
a Commissioner has held office only for, say, three or
six years, provided his term will not exceed nine years
in all." This was the interpretation despite the express
provision in the 1935 Constitution that a COMELEC
member "shall hold office for a term of nine years and
may not be reappointed."
To foreclose this interpretation, the phrase "without
reappointment" appears twice in Section 1 (2), Article
IX-C of the present Constitution. The first phrase
prohibits reappointment of any person previously
appointed for a term of seven years. The second
phrase prohibits reappointment of any person
previously appointed for a term of five or three years
pursuant to the first set of appointees under the
Constitution. In either case, it does not matter if the
person previously appointed completes his term of
office for the intention is to prohibit any reappointment
of any kind.
However, an ad interim appointment that has lapsed
by inaction of the Commission on Appointments does
not constitute a term of office. The period from the
time the ad interim appointment is made to the time it
lapses is neither a fixed term nor an unexpired term.
To hold otherwise would mean that the President by
his unilateral action could start and complete the
running of a term of office in the COMELEC without
the consent of the Commission on Appointments. This
interpretation renders inutile the confirming power of
the Commission on Appointments.
The phrase "without reappointment" applies only to
one who has been appointed by the President and
confirmed by the Commission on Appointments,
whether or not such person completes his term of
office. There must be a confirmation by the
Commission on Appointments of the previous
appointment before the prohibition on reappointment
can apply. To hold otherwise will lead to absurdities
and negate the President’s power to make ad interim
appointments.
In the great majority of cases, the Commission on
Appointments usually fails to act, for lack of time, on
the ad interim appointments first issued to appointees.
If such ad interim appointments can no longer be
renewed, the President will certainly hesitate to make
ad interim appointments because most of her
appointees will effectively be disapproved by mere
inaction of the Commission on Appointments. This will
nullify the constitutional power of the President to
make ad interim appointments, a power intended to
avoid disruptions in vital government services. This
Court cannot subscribe to a proposition that will wreak
havoc on vital government services.
The prohibition on reappointment is common to the
three constitutional commissions. The framers of the
present Constitution prohibited reappointments for two
reasons. The first is to prevent a second appointment
for those who have been previously appointed and
confirmed even if they served for less than seven
years. The second is to insure that the members of
the three constitutional commissions do not serve
beyond the fixed term of seven years. As reported in
the Journal of the Constitutional Commission,
Commissioner Vicente B. Foz, who sponsored58 the
proposed articles on the three constitutional
commissions, outlined the four important features of
the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced
basic changes in the common provision affecting the
three Constitutional Commissions, and which are: 1)
fiscal autonomy which provides (that) appropriations
shall be automatically and regularly released to the
Commission in the same manner (as) provided for the
Judiciary; 2) fixed term of office without reappointment
on a staggered basis to ensure continuity of functions
and to minimize the opportunity of the President to
appoint all the members during his incumbency; 3)
prohibition to decrease salaries of the members of the
Commissions during their term of office; and 4)
appointments of members would not require
confirmation."59 (Emphasis supplied)
There were two important amendments subsequently
made by the Constitutional Commission to these four
features. First, as discussed earlier, the framers of the
Constitution decided to require confirmation by the
Commission on Appointments of all appointments to
the constitutional commissions. Second, the framers
decided to strengthen further the prohibition on
serving beyond the fixed seven-year term, in the light
of a former chair of the Commission on Audit
remaining in office for 12 years despite his fixed term
of seven years. The following exchange in the
deliberations of the Constitutional Commission is
instructive:
"MR. SUAREZ: These are only clarificatory questions,
Madam President. May I call the sponsor’s attention,
first of all, to Section 2 (2) on the Civil Service
Commission wherein it is stated: "In no case shall any
Member be appointed in a temporary or acting
capacity." I detect in the Committee’s proposed
resolutions a constitutional hangover, if I may use the
term, from the past administration. Am I correct in
concluding that the reason the Committee introduced
this particular provision is to avoid an incident similar
to the case of the Honorable Francisco Tantuico who
was appointed in an acting capacity as Chairman of
the Commission on Audit for about 5 years from 1975
until 1980, and then in 1980, was appointed as
Chairman with a tenure of another 7 years. So, if we
follow that appointment to (its) logical conclusion, he
occupied that position for about 12 years in violation
of the Constitution?
MR. FOZ: It is only one of the considerations. Another
is really to make sure that any member who is
appointed to any of the commissions does not serve
beyond 7 years."60 (Emphasis supplied)
Commissioner Christian Monsod further clarified the
prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the
whole Article, she will notice that there is no
reappointment of any kind and, therefore as a whole
there is no way that somebody can serve for more
than seven years. The purpose of the last sentence is
to make sure that this does not happen by including in
the appointment both temporary and acting
capacities."61 (Emphasis supplied)
Plainly, the prohibition on reappointment is intended
to insure that there will be no reappointment of any
kind. On the other hand, the prohibition on temporary
or acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that
may result in an appointee’s total term of office
exceeding seven years. The evils sought to be
avoided by the twin prohibitions are very specific -
reappointment of any kind and exceeding one’s term
in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions,
the framers of the Constitution tightened even further
the screws on those who might wish to extend their
terms of office. Thus, the word "designated" was
inserted to plug any loophole that might be exploited
by violators of the Constitution, as shown in the
following discussion in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words
"appointed" and "in", I propose to insert the words OR
DESIGNATED so that the whole sentence will read:
"In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does
the Committee say?
MR. FOZ: But it changes the meaning of this
sentence. The sentence reads: "In no case shall any
Member be appointed in a temporary or acting
capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the
reason for this amendment is that some lawyers make
a distinction between an appointment and a
designation. The Gentleman will recall that in the case
of Commissioner on Audit Tantuico, I think his term
exceeded the constitutional limit but the Minister of
Justice opined that it did not because he was only
designated during the time that he acted as
Commissioner on Audit. So, in order to erase that
distinction between appointment and designation, we
should specifically place the word so that there will be
no more ambiguity. "In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting
capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding
Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any
objection? (Silence) The Chair hears none; the
amendment is approved."62
The ad interim appointments and subsequent
renewals of appointments of Benipayo, Borra and
Tuason do not violate the prohibition on
reappointments because there were no previous
appointments that were confirmed by the Commission
on Appointments. A reappointment presupposes a
previous confirmed appointment. The same ad interim
appointments and renewals of appointments will also
not breach the seven-year term limit because all the
appointments and renewals of appointments of
Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008.63 Any delay in their
confirmation will not extend the expiry date of their
terms of office. Consequently, there is no danger
whatsoever that the renewal of the ad interim
appointments of these three respondents will result in
any of the evils intended to be exorcised by the twin
prohibitions in the Constitution. The continuing
renewal of the ad interim appointment of these three
respondents, for so long as their terms of office expire
on February 2, 2008, does not violate the prohibition
on reappointments in Section 1 (2), Article IX-C of the
Constitution.
Fourth Issue: Respondent Benipayo’s Authority to
Reassign Petitioner
Petitioner claims that Benipayo has no authority to
remove her as Director IV of the EID and reassign her
to the Law Department. Petitioner further argues that
only the COMELEC, acting as a collegial body, can
authorize such reassignment. Moreover, petitioner
maintains that a reassignment without her consent
amounts to removal from office without due process
and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does
not possess any color of title to the office of Chairman
of the COMELEC. We have ruled, however, that
Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the
powers of that office for so long as his ad interim
appointment remains effective. Under Section 7 (4),
Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC
is vested with the following power:
"Section 7. Chairman as Executive Officer; Powers
and Duties. The Chairman, who shall be the Chief
Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer
personnel in accordance with the provisions of the
Civil Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the
COMELEC, is expressly empowered on his own
authority to transfer or reassign COMELEC personnel
in accordance with the Civil Service Law. In the
exercise of this power, the Chairman is not required
by law to secure the approval of the COMELEC en
banc.
Petitioner’s appointment papers dated February 2,
1999, February 15, 2000 and February 15, 2001,
attached as Annexes "X", "Y" and "Z" to her Petition,
indisputably show that she held her Director IV
position in the EID only in an acting or temporary
capacity.64 Petitioner is not a Career Executive
Service (CES) officer, and neither does she hold
Career Executive Service Eligibility, which are
necessary qualifications for holding the position of
Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service
Commission.65 Obviously, petitioner does not enjoy
security of tenure as Director IV. In Secretary of
Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66
this Court held that:
"As respondent does not have the rank appropriate
for the position of Chief Public Attorney, her
appointment to that position cannot be considered
permanent, and she can claim no security of tenure in
respect of that position. As held in Achacoso v.
Macaraig:
‘It is settled that a permanent appointment can be
issued only ‘to a person who meets all the
requirements for the position to which he is being
appointed, including the appropriate eligibility
prescribed.’ Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary.
And being so, it could be withdrawn at will by the
appointing authority and ‘at a moment’s notice’,
conformably to established jurisprudence x x x.
The mere fact that a position belongs to the Career
Service does not automatically confer security of
tenure on its occupant even if he does not possess
the required qualifications. Such right will have to
depend on the nature of his appointment, which in
turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the
position cannot be appointed to it in the first place, or
as an exception to the rule, may be appointed to it
merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to
him cannot be regarded as permanent even if it may
be so designated x x x.’"
Having been appointed merely in a temporary or
acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law.
This time, the vigorous argument of petitioner that a
temporary or acting appointment can be withdrawn or
revoked at the pleasure of the appointing power
happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out
during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code, which
provides as follows:
"Section 261. Prohibited Acts. The following shall be
guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil
service - Any public official who makes or causes any
transfer or detail whatever of any officer or employee
in the civil service including public school teachers,
within the election period except upon prior approval
of the Commission."
Petitioner claims that Benipayo failed to secure the
approval of the COMELEC en banc to effect transfers
or reassignments of COMELEC personnel during the
election period.67 Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or
reassignment of COMELEC personnel during the
election period.
Contrary to petitioner’s allegation, the COMELEC did
in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000,68 exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. The
resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g)
and (h), of the Omnibus Election Code provides as
follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty
of an election offense:
xxx
(h) Transfer of officers and employees in the civil
service – Any public official who makes or causes any
transfer or detail whatever of any officer or employee
in the civil service including public school teachers,
within the election period except upon approval of the
Commission.
WHEREAS, the aforequoted provisions are applicable
to the national and local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint,
transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it
can carry out its constitutional duty to conduct free,
orderly, honest, peaceful and credible elections;
"NOW, THEREFORE, the Commission on Elections
by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other
election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill
new positions and transfer or reassign its personnel,
when necessary in the effective performance of its
mandated functions during the prohibited period,
provided that the changes in the assignment of its
field personnel within the thirty-day period before
election day shall be effected after due notice and
hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300,
requiring due notice and hearing before any transfer
or reassignment can be made within thirty days prior
to election day, refers only to COMELEC field
personnel and not to head office personnel like the
petitioner. Under the Revised Administrative Code,69
the COMELEC Chairman is the sole officer
specifically vested with the power to transfer or
reassign COMELEC personnel. The COMELEC
Chairman will logically exercise the authority to
transfer or reassign COMELEC personnel pursuant to
COMELEC Resolution No. 3300. The COMELEC en
banc cannot arrogate unto itself this power because
that will mean amending the Revised Administrative
Code, an act the COMELEC en banc cannot legally
do.
COMELEC Resolution No. 3300 does not require that
every transfer or reassignment of COMELEC
personnel should carry the concurrence of the
COMELEC as a collegial body. Interpreting
Resolution No. 3300 to require such concurrence will
render the resolution meaningless since the
COMELEC en banc will have to approve every
personnel transfer or reassignment, making the
resolution utterly useless. Resolution No. 3300 should
be interpreted for what it is, an approval to effect
transfers and reassignments of personnel, without
need of securing a second approval from the
COMELEC en banc to actually implement such
transfer or reassignment.
The COMELEC Chairman is the official expressly
authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure
capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the
transfer or reassignment of COMELEC personnel
during the election period. Thus, Benipayo’s order
reassigning petitioner from the EID to the Law
Department does not violate Section 261 (h) of the
Omnibus Election Code. For the same reason,
Benipayo’s order designating Cinco Officer-in-Charge
of the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent
Gideon C. De Guzman, Officer-in-Charge of the
Finance Services Department of the Commission on
Elections, did not act in excess of jurisdiction in
paying the salaries and other emoluments of
Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of
merit. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
Puno, and Vitug, JJ., on official leave.
G.R. No. 118702 March 16, 1995
CIRILO ROY G. MONTEJO, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
SERGIO A.F. APOSTOL, intervenor.
PUNO, J.:
More than political fortunes are at stake in the case at
bench. Petitioner Cirilo Roy G. Montejo, representing
the First District of Leyte, pleads for the annulment of
section 1 of Resolution No. 2736 of the COMELEC,
redistricting certain municipalities in Leyte, on the
ground that it violates the principle of equality of
representation. To remedy the alleged inequity,
petitioner seeks to transfer the municipality of Tolosa
from his district to the Second District of the province.
Intervenor Sergio A.F. Apostol, representing the
Second District, vigorously opposed the inclusion of
Tolosa in his district. We gave due course to the
petition considering that, at bottom, it involves the
validity of the unprecedented exercise by the
COMELEC of the legislative power of redistricting and
reapportionment.
The province of Leyte with the cities of Tacloban and
Ormoc is composed of five (5) legislative districts.1
The first district2 covers Tacloban City and the
municipalities of Alangalang, Babatngon, Palo, San
Miguel, Sta. Fe, Tanauan and Tolosa.
The second district3 is composed of the municipalities
of Barugo, Barauen, Capoocan, Carigara, Dagami,
Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur,
Pastrana, Tabontabon, and Tunga.
The third district4 is composed of the municipalities of
Almeria, Biliran, Cabucgayan, Caibiran, Calubian,
Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro,
Tabango, and Villaba.
The fourth district5 is composed of Ormoc City and
the municipalities of Albuera, Isabel, Kananga,
Matagob, Merida, and Palompon.
The fifth district6 is composed of the municipalities of
Abuyog, Bate, Baybay, Hilongos, Hindang, Inopacan,
Javier, Mahaplag, and Matalom.
 Voters

Biliran, located in the third district of Leyte , was made (1990) (1994)
its sub-province by virtue of Republic Act No. 2141
Section 1 of the law spelled out enacted on April 8,
1959.7
1. Tacloban City, 137,190 81,679

2. Alangalang, 33,375 20,543

Section 1 of the law spelled out the municipalities
comprising the sub-province, viz.: "Almeria, Biliran, 3. Babatngon, 17,795 9,929
Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi
and Naval and all the territories comprised therein."
4. Palo, 38,100 20,816

5. San Miguel, 13,438 8,167

On January 1, 1992, the Local Government Code took
6. Sta. Fe, 12,119 7,497
effect. Pursuant to its Section 462, the sub-province of
Biliran became a regular province. It provides:
7. Tanauan and, 38,033 22,357

8. Tolosa; 13,299 7,700

Existing sub-provinces are hereby converted into
regular provinces upon approval by a majority of the ———— ————
votes cast in a plebiscite to be held in the sub-
provinces and the original provinces directly affected. TOTAL 303,349 178,688
The plebiscite shall be conducted by the COMELEC
simultaneously with the national elections following
the effectivity of this code. The new legislative districts
created as a result of such conversion shall continue Second District: Population Registered
to be represented in Congress by the duly-elected
representatives of the original districts out of which Voters
said new provinces or districts were created until their
own representatives shall have been elected in the (1990) (1994)
next regular congressional elections and qualified.

1. Barugo, 23,817 13,237

The conversion of Biliran into a regular province was
approved by a majority of the votes cast in a plebiscite
held on May 11, 1992. As a consequence of the 2. Barauen, 46,029 23,307
conversion, eight (8) municipalities of the Third District
composed the new province of Biliran, i.e., Almeria, 3. Carigara 38,863 22,036
Biliran, Cabucgayan, Caibiran, Culaba, Kawayan,
Maripipi, and Naval. A further consequence was to 4. Dagami, 25,606 16,519
reduce the Third District to five (5) municipalities with
a total population of 145,067 as per the 1990 census. 5. Dulag, 33,020 19,375

6. Jaro, 31,727 17,139

To remedy the resulting inequality in the distribution of 7. Julita, 9,944 6,196

inhabitants, voters and municipalities in the province
of Leyte, respondent COMELEC held consultation 8. La Paz, 14,311 9,003
meetings with the incumbent representatives of the
province and other interested parties. On December 9. Mayorga, 10,530 5,868
29, 1994, it promulgated Resolution No. 2736 where,
among others, it transferred the municipality of
10. Mac Arthur, 13,159 8,628
Capoocan of the Second District and the municipality
of Palompon of the Fourth District to the Third District
of Leyte. The composition of the First District which 11. Pastrana, 12,565 7,348
includes the municipality of Tolosa and the
composition of the Fifth District were not disturbed. 12. Tabontabon, and 7,183 4,419
After the movement of municipalities, the composition
of the five (5) legislative districts appeared as follows: 13. Tunga; 5,413 3,387

———— ————

First District: Population Registered TOTAL 272,167 156,462

 2. Bato, 28,197 116,13

Third District: Population Registered 3. Baybay, 82,281 47,923

Voters 4. Hilongos, 48,617 26,871

(1990) (1994) 5. Hindang, 16,272 9,659

6. Inopacan, 16,894 10,401

1. Calubian, 25,968 16,649 7. Javier, 18,658 11,713

2. Leyte, 32,575 16,415 8. Mahaplag, and 22,673 13,616

3. San Isidro, 24,442 14,916 9. Matalom 28,291 16,247

4. Tabango, 29,743 15,48 ———— ————

5. Villaba, 32,339 21,227 TOTAL 309,148 181,242

6. Capoocan, and 23,687 13,595

7. Palompon; 45,745 27,474 Petitioner Montejo filed a motion for reconsideration

calling the attention of respondent COMELEC, among
———— ———— others, to the inequitable distribution of inhabitants
and voters between the First and Second Districts. He
TOTAL 214,499 125,763 alleged that the First District has 178,688 registered
voters while the Second District has 156,462
registered voters or a difference of 22,226 registered
voters. To diminish the difference, he proposed that
the municipality of Tolosa with 7,7000 registered
Fourth District: Population Registered voters be transferred from the First to the Second
District. The motion was opposed by intervenor,
Voters Sergio A.F. Apostol. Respondent Commission denied
the motion ruling that: (1) its adjustment of
(1990) (1994) municipalities involved the least disruption of the
territorial composition of each district; and (2) said
adjustment complied with the constitutional
requirement that each legislative district shall
1. Ormoc City, 129,456 75,140 comprise, as far as practicable, contiguous, compact
and adjacent territory.
2. Albuera, 32,395 17,493

3. Isabel, 33,389 21,889

In this petition, petitioner insists that Section I of
4. Kananga, 36,288 19,873 Resolution No. 2736 violates the principle of equality
of representation ordained in the Constitution. Citing
Wesberry v. Sanders,8 he argues that respondent
5. Matagob, 15,474 9,407 COMELEC violated "the constitutional precept that as
much as practicable one man's vote in a
6. Merida, and 22,345 12,474 congressional election is to be worth as much as
another's." The Solicitor General, in his Comment,
———— ———— concurred with the views of the petitioner. The
intervenor, however, opposed the petition on two (2)
TOTAL 269,347 155,995 grounds: (1) COMELEC has no jurisdiction to
promulgate Resolution No. 2736; and (2) assuming it
has jurisdiction, said Resolution is in accord with the
Constitution. Respondent COMELEC filed its own
Fifth District: Population Registered Comment alleging that it acted within the parameters
of the Constitution.
Voters

(1990) (1994)
We find section 1 of Resolution No. 2736 void.

1. Abuyog, 47,265 28,682

While the petition at bench presents a significant
issue, our first inquiry will relate to the constitutional
power of the respondent COMELEC9 to transfer
municipalities from one legislative district to another
legislative district in the province of Leyte. The basic
powers of respondent COMELEC, as enforcer and
administrator of our election laws, are spelled out in
black and white in section 2(c), Article IX of the
Constitution. Rightly, respondent COMELEC does not
invoke this provision but relies on the Ordinance
appended to the 1987 Constitution as the source of its
power of redistricting which is traditionally regarded as
part of the power to make laws. The Ordinance is
entitled "Apportioning the Seats of the House of
Representatives of the Congress of the Philippines to
the Different Legislative Districts in Provinces and
Cities and the Metropolitan Manila Area." Its
substantive sections state:
Sec. 1. For purposes of the election of Members of
the House of Representatives of the First Congress of
the Philippines under the Constitution proposed by the
1986 Constitutional Commission and subsequent
elections, and until otherwise provided by law, the
Members thereof shall be elected from legislative
districts apportioned among the provinces, cities, and
the Metropolitan Manila Area as follows:
xxx xxx xxx
Sec. 2. The Commission on Elections is hereby
empowered to make minor adjustments of the
reapportionment herein made.
Sec. 3. Any province that may hereafter be created,
or any city whose population may hereafter increase
to more than two hundred fifty thousand shall be
entitled in the immediately following election to at
least one Member or such number of Members as it
may be entitled to on the basis of the number of its
inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to
the province out of which such new province was
created or where the city, whose population has so
increased, is geographically located shall be
correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made
within one hundred and twenty days before the
election. (Emphasis supplied)
The Ordinance was made necessary because
Proclamation No. 3 10 of President Corazon C.
Aquino, ordaining the Provisional Constitution of the
Republic of the Philippines, abolished the Batasang
Pambansa. 11 She then exercised legislative powers
under the Provisional Constitution.12
The Ordinance was the principal handiwork of then
Commissioner Hilario G. Davide, Jr., 13 now a
distinguished member of this Court. The records
reveal that the Constitutional Commission had to
resolve several prejudicial issues before authorizing
the first congressional elections under the 1987
Constitution. Among the vital issues were: whether
the members of the House of Representatives would
be elected by district or by province; who shall
undertake the apportionment of the legislative
districts; and, how the apportionment should be
made.14 Commissioner Davide, Jr. offered three (3)
options for the Commission to consider: (1) allow
President Aquino to do the apportionment by law; (2)
empower the COMELEC to make the apportionment;
or (3) let the Commission exercise the power by way
of an Ordinance appended to the Constitution. 15 The
different dimensions of the options were discussed by
Commissioners Davide, Felicitas S. Aquino and Blas
F. Ople. We quote the debates in extenso, viz.:16
xxx xxx xxx
MR. PADILLA. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Padilla is recognized.
MR. PADILLA. I think I have filed a very simple
motion by way of amendment by substitution and this
was, I believe, a prior or a proposed amendment.
Also, the chairman of the Committee on the
Legislative said that he was proposing a vote first by
the Chamber on the concept of whether the election is
by province and cities on the one hand, or by
legislative districts on the other. So I propose this
simple formulation which reads: "FOR THE FIRST
ELECTION UNDER THIS CONSTITUTION THE
LEGISLATIVE DISTRICTS SHALL BE
APPORTIONED BY THE COMMISSION ON
ELECTIONS." I hope the chairman will accept the
proposed amendment.
SUSPENSION OF SESSION
MR. DAVIDE. The effect is, more or less, the same
insofar as the apportionment is concerned, but the
Bernas-Sarmiento et al. proposal would also provide
for a mandate for the apportionment later, meaning
after the first election, which will in effect embody
what the Commission had approved, reading as
follows: "Within three years following the return of
every census, the Congress shall make a
reapportionment of legislative districts based on the
standards provided in this section."
So, Mr. Presiding Officer, may I request for a
suspension of the session, so that all the proponents
can work together.
THE PRESIDING OFFICER (Mr. Jamir). The session
is suspended.
It was 3:33 p.m.
RESUMPTION OF SESSION
At 3:40 p.m., the session was resumed.
THE PRESIDING OFFICER (Mr. Jamir). The session
is resumed.
Commissioner Davide is recognized.
MR. DAVIDE. Mr. Presiding Officer, as a
compromise, I wonder if the Commission will allow
this. We will just delete the proposed subparagraph
(4) and all the capitalized words in paragraph (5). So
that in paragraph (5), what would be left would only be
the following: "Within three years following the return
of every census, the Congress shall make a
reapportionment of legislative districts based on the
standards provided in this section."
But we shall have an ordinance appended to the new
Constitution indicating specifically the following: "FOR
PURPOSES OF THE ELECTION OF MEMBERS OF
THE HOUSE OF REPRESENTATIVES IN THE
FIRST CONGRESSIONAL ELECTION
IMMEDIATELY FOLLOWING THE RATIFICATION
OF THIS CONSTITUTION PROPOSED BY THE
1986 CONSTITUTIONAL COMMISSION AND
SUBSEQUENT ELECTIONS AND UNTIL
OTHERWISE PROVIDED BY LAW, THE MEMBERS
OF THE HOUSE OF REPRESENTATIVES SHALL
BE ELECTED FROM LEGISLATIVE DISTRICTS
APPORTIONED AMONG THE PROVINCES, CITIES
AND THE METROPOLITAN MANILA AREA AS
FOLLOWS."
And what will follow will be the allocation of seats to
Metropolitan Manila Area, to the provinces and to the
cities, without indicating the municipalities comprising
each of the districts. Then, under Section 2, we will
mandate the COMELEC to make the actual
apportionment on the basis of the number of seats
provided for and allocated to each province by us.
MS. AQUINO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Aquino is recognized.
MS. AQUINO. I have to object to the provision which
will give mandate to COMELEC to do the redistricting.
Redistricting is vitally linked to the baneful practices of
cutting up areas or spheres of influence; in other
words, gerrymandering. This Commission, being a
nonpartisan, a nonpolitical deliberative body, is in the
best possible situation under the circumstances to
undertake that responsibility. We are not wanting in
expertise and in time because in the first place, the
Committee on the Legislative has prepared the report
on the basis of the recommendation of the
COMELEC.
MR. OPLE. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Ople is recognized.
MR. OPLE. I would like to support the position
taken by Commissioner Aquino in this respect. We
know that the reapportionment of provinces and cities
for the purpose of redistricting is generally inherent in
the constituent power or in the legislative power. And I
would feel very uncertain about delegating this to a
quasi-judicial body even if it is one of the
constitutional offices created under this Constitution.
We have the assurance of Commissioner Davide, as
chairman of the Committee on the Legislative, that
even given the very short time remaining in the life of
this Commission, there is no reason why we cannot
complete the work of reapportionment on the basis of
the COMELEC plan which the committee has already
thoroughly studied and which remains available to the
Constitutional Commission.
So, I support the position taken by Commissioner
Aquino, Mr. Presiding Officer. I think, it is the safest,
the most reasonable, and the most workable
approach that is available to this Commission.
THE PRESIDING OFFICER (Mr. Jamir). What does
Commissioner Davide say:
MR. DAVIDE. The issue now is whether this body
will make the apportionment itself or whether we will
leave it to the COMELEC. So, there arises, therefore,
a prejudicial question for the body to decide. I would
propose that the Commission should now decide what
body should make the apportionment. Should it be the
Commission or should it be the COMELEC? And the
Committee on the Legislative will act accordingly on
the basis of the decision.
MR. BENGZON. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Bengzon is recognized.
MR. BENGZON. Apropos of that, I would like to
inform the body that I believe the Committee on the
Legislative has precisely worked on this matter and
they are ready with a list of apportionment. They
have, in fact, apportioned the whole country into
various districts based on the recommendation of the
COMELEC. So they are ready with the list and if this
body would wish to apportion the whole country by
district itself, then I believe we have the time to do it
because the Committee on the Legislative is ready
with that particular report which need only to be
appended to the Constitution. So if this body is ready
to accept the work of the Committee on the
Legislative we would have no problem. I just would
like to give that information so that the people here
would be guided accordingly when they vote.
MR. RODRIGO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir)
Commissioner Rodrigo is recognized.
MR. RODRIGO. I just would like to ask
Commissioner Davide some questions.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Davide may yield if he so desires.
MR. DAVIDE. Gladly.
MR. RODRIGO. Will this apportionment which
we are considering apply only to the first election after
the enactment of the Constitution?
MR. DAVIDE. On the basis of the Padilla proposal, it
will be for the first election; on the basis of the
Sarmiento proposal, it will only apply to the first
election.
MR. RODRIGO. And after that, Congress will
have the power to reapportion.
MR. DAVIDE. Yes.
MR. RODRIGO. So, if we attach this to the
Constitution — the reapportionment based on the
COMELEC study and between the approval of the
Constitution and the first election — the COMELEC
no longer has the power to change that even a bit.
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Jamir)
Commissioner Regalado is recognized.
MR. REGALADO. May I address a clarificatory
question to Commissioner Davide?
THE PRESIDING OFFICER (Mr. Jamir). Gentleman
will please proceed.
MR. REGALADO. On the basis of the
Commissioner's proposed apportionment and
considering the fact that there will be a corresponding
reduction to 183 seats, would there be instances
representation of under non-representation?
MR. DAVIDE. None at all, Mr. Presiding Officer. I can
assure the Commission that there will be no case of
inequitable distribution. It will come out to be one for
every 350 to 400,000 inhabitants.
MR. REGALADO. And that would be within the
standard that we refer.
MR. DAVIDE. Yes, Mr. Presiding Officer.
MR. REGALADO. Thank you. the authority. As a matter of fact, we cannot exercise
that authority until after the ratification of the new
Constitution.

MR. RAMA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). What does

Commissioner Sarmiento say?
THE PRESIDING OFFICER (Mr. Jamir). The Floor
Leader is recognized.

MR. SARMIENTO. It is accepted, Mr. Presiding

Officer. So, may I move for the approval of this
MR. RAMA. The parliamentary situation is that proposed amendment.
there was a motion by Commissioner Sarmiento to
mandate COMELEC to do the redistricting. This was
also almost the same motion by Commissioner Padilla
and I think we have had some kind of meeting of MS. AQUINO. Mr. Presiding Officer.
minds. On the other hand, there seems to be a
prejudicial question, an amendment to the
amendment as suggested by Commissioner Aquino,
that instead of the COMELEC, it should be this THE PRESIDING OFFICER (Mr. Jamir).
Commission that shall make the redistricting. So may Commissioner Aquino is recognized.
I ask Commissioner Aquino, if she insists on that idea,
to please formulate it into a motion so we can vote on
that first as an amendment to the amendment.
MS. AQUINO. Would that require a two-thirds vote or
a simple plurality to adopt that motion?
THE PRESIDING OFFICER (Mr.
Jamir).Commissioner Aquino is recognized.
THE PRESIDING OFFICER (Mr. Jamir). That will
require a two-thirds vote.
MS . AQUINO. The motion is for this Commission to
undertake the apportionment of the legislative districts
instead of the proposal that COMELEC be given the
mandate to undertake the responsibility. MS. AQUINO. Thank you. Mr. Presiding Officer.

xxx xxx xxx MR. SARMIENTO. May I restate the motion, Mr.
Presiding Officer.

MR. SARMIENTO. May I be clarified, Mr.

Presiding Officer. Is it the motion or the proposed THE PRESIDING OFFICER (Mr. Jamir) The
amendment? Gentleman may proceed.

THE PRESIDING OFFICER (Mr. Jamir). The MR. SARMIENTO. May I move that this
proposed amendment. Commission do the reapportionment legislative
districts.

MR. SARMIENTO. May we move for the approval

of this proposed amendment which we substitute for MS. AQUINO. Mr. Presiding Officer.
paragraphs 4 and 5.

THE PRESIDING OFFICER (Mr. Jamir). What is the

MR. DAVIDE. May I request that it should be treated pleasure of Commissioner Aquino?
merely as a motion to be followed by a deletion of
paragraph 4 because that should not really appear as
a paragraph in Section 5; otherwise, it will appear very
ugly in the Constitution where we mandate a MS. AQUINO. May I be clarified again on the motion.
Commission that will become functus officio to have Is Commissioner Sarmiento, therefore, adopting my
motion? Would it not be right for him to move that the
COMELEC be mandated?
MR. SARMIENTO. No, we accepted the
amendment. It is already the Commission that will be
mandated.
MS. AQUINO. So, the Gentlemen has accepted the
amendment the amendment.
Thank you.
MR. SARMIENTO. I am voting that this
Commission do the reapportionment.
VOTING
THE PRESIDING OFFICER (Mr. Jamir). Let us
proceed to vote.
As many as are in favor, please raise their hand.
(Several Members raised their hand.)
As many as are against, please raise their hand. (No
Member raised his hand.)
The results show 30 votes in favor and none against;
the motion is approved.
Clearly then, the Constitutional Commission denied to
the COMELEC the major power of legislative
apportionment as it itself exercised the power. Section
2 of the Ordinance only empowered the COMELEC
"to make minor adjustments of the reapportionment
herein made." The meaning of the phrase "minor
adjustments was again clarified in the debates 17 of
the Commission, viz.:
xxx xxx xxx
MR. GUINGONA. This is just clarificatory, Mr.
Presiding Officer. In Section 2, the Commission on
Elections is empowered to make minor adjustments
on the apportionment made here.
MR. DAVIDE. Yes, Mr. Presiding Officer.
MR. GUINGONA. We have not set any time limit
for this.
MR. DAVIDE. We should not set a time limit unless
during the period of amendments a proposal is made.
The authority conferred would be on minor corrections
or amendments, meaning to say, for instance, that we
may have forgotten an intervening municipality in the
enumeration, which ought to be included in one
district. That we shall consider a minor amendment.
MR. GUINGONA. Thank you.
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Romulo).
Commissioner de Castro is recognized.
MR. DE CASTRO. Thank you.
I was about to ask the committee the meaning of
minor adjustment. Can it be possible that one
municipality in a district be transferred to another
district and call it a minor adjustment?
MR. DAVIDE. That cannot be done, Mr. Presiding
Officer. Minor, meaning, that there should be no
change in the allocations per district. However, it may
happen that we have forgotten a municipality in
between which is still in the territory of one assigned
district, or there may be an error in the correct name
of a particular municipality because of changes made
by the interim Batasang Pambansa and the Regular
Batasang Pambansa. There were many batas
pambansa enacted by both the interim and the
Regular Batasang Pambansa changing the names of
municipalities.
MR. DE CASTRO. So, the minor adjustment may
be made only if one of the municipalities is not
mentioned in the ordinance appended to, and it will be
up for the COMELEC now to adjust or to put such
municipality to a certain district.

MR. DAVIDE. Yes, Mr. Presiding Officer. For
instance, we may not have the data regarding a
division of a municipality by the interim Batasang
Pambansa or the Regular Batasang Pambansa into
two municipalities, meaning, a mother municipality
and the new municipality, but still actually these are
within the geographical district area.
MR. DE CASTRO. So the minor adjustment which
the COMELEC cannot do is that, if, for example, my
municipality is in the First District of Laguna, they
cannot put that in any other district.
while this Court can strike down an unconstitutional
reapportionment, it cannot itself make the
reapportionment as petitioner would want us to do by
directing respondent COMELEC to transfer the
municipality of Tolosa from the First District to the
Second District of the province of Leyte.
IN VIEW WHEREOF, section 1 of Resolution No.
2736 insofar as it transferred the municipality of
Capoocan of the Second District and the municipality
of Palompon of the Fourth District to the Third District
of the province of Leyte, is annulled and set aside. We
also deny the Petition praying for the transfer of the
municipality of Tolosa from the First District to the
Second District of the province of Leyte. No costs.

MR. DAVIDE. That is not even a minor correction. It
is a substantive one.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.

MR. DE CASTRO. Thank you. G.R. No. 73155 July 11, 1986

Consistent with the limits of its power to make minor PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD,
adjustments, Section 3 of the Ordinance did not also SERGIO HILADO, VIRGILIO GASTON, CONCHITA
give the respondent COMELEC any authority to MINAYA, TERESITA ESTACIO, DESIDERIO
transfer municipalities from one legislative district to DEFERIA, ROMEO GAMBOA, ALBERTO LACSON,
another district. The power granted by Section 3 to FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND
the respondent COMELEC is to adjust the number of CECILIA MAGSAYSAY, petitioners,
members (not municipalities) "apportioned to the
province out of which such new province was created. vs.
. . ."
THE COMMISSION ON ELECTIONS and THE
PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL, respondents.
Prescinding from these premises, we hold that
respondent COMELEC committed grave abuse of
discretion amounting to lack of jurisdiction when it
promulgated section 1 of its Resolution No. 2736 Gamboa & Hofileña Law Office for petitioners.
transferring the municipality of Capoocan of the
Second District and the municipality of Palompon of
the Fourth District to the Third District of Leyte.

ALAMPAY, J.:
It may well be that the conversion of Biliran from a
sub-province to a regular province brought about an
imbalance in the distribution of voters and inhabitants
in the five (5) legislative districts of the province of
Prompted by the enactment of Batas Pambansa Blg.
Leyte. This imbalance, depending on its degree, could
885-An Act Creating a New Province in the Island of
devalue a citizen's vote in violation of the equal
Negros to be known as the Province of Negros del
protection clause of the Constitution. Be that as it
Norte, which took effect on December 3, 1985,
may, it is not proper at this time for petitioner to raise
Petitioners herein, who are residents of the Province
this issue using the case at bench as his legal vehicle.
of Negros Occidental, in the various cities and
The issue involves a problem of reapportionment of
municipalities therein, on December 23, 1985, filed
legislative districts and petitioner's remedy lies with
with this Court a case for Prohibition for the purpose
Congress. Section 5(4), Article VI of the Constitution
of stopping respondents Commission on Elections
categorically gives Congress the power to
from conducting the plebiscite which, pursuant to and
reapportion, thus: "Within three (3) years following the
in implementation of the aforesaid law, was scheduled
return of every census, the Congress shall make a
for January 3, 1986. Said law provides:
reapportionment of legislative districts based on the
standards provided in this section." In Macias v.
COMELEC, 18 we ruled that the validity of a
legislative apportionment is a justiciable question. But
SECTION 1. The Cities of Silay, Cadiz, and San
Carlos and the municipalities of Calatrava, Taboso,
Escalante, Sagay, Manapla, Victorias, E.R. Magalona;
and Salvador Benedicto, all in the northern portion of
the Island of Negros, are hereby separated from the
province to be known as the Province of Negros del
Norte.
SEC. 2. The boundaries of the new province shall be
the southern limits of the City of Silay, the Municipality
of Salvador Benedicto and the City of San Carlos on
the south and the territorial limits of the northern
portion to the Island of Negros on the west, north and
east, comprising a territory of 4,019.95 square
kilometers more or less.
SEC. 3. The seat of government of the new province
shall be the City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the
proposed new province which are the areas affected
within a period of one hundred and twenty days from
the approval of this Act. After the ratification of the
creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the
President of the Philippines shall appoint the first
officials of the province.
SEC. 5. The Commission on Elections shall
conduct and supervise the plebiscite herein provided,
the expenses for which shall be charged to local
funds.
SEC. 6. This Act shall takeeffect upon its
approval.(Rollo, pp. 23-24)
Petitioners contend that Batas Pambansa Blg. 885 is
unconstitutional and it is not in complete accord with
the Local Government Code as in Article XI, Section 3
of our Constitution, it is expressly mandated that—
See. 3. No province, city, municipality or barrio may
be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance
with the criteria established in the local government
code, and subject to the approval by a majority of the
votes in a plebiscite in the unit or units affected.
Section 197 of the Local Government Code
enumerates the conditions which must exist to provide
the legal basis for the creation of a provincial unit and
these requisites are:
SEC. 197. Requisites for Creation. A province may be
created if it has a territory of at least three thousand
five hundred square kilometers, a population of at
least five hundred thousand persons, an average
estimated annual income, as certified by the Ministry
of Finance, of not less than ten million pesos for the
last three consecutive years, and its creation shall not
reduce the population and income of the mother
province or provinces at the time of said creation to
less than the minimum requirements under this
section. The territory need not be contiguous if it
comprises two or more islands.
The average estimated annual income shall include
the income alloted for both the general and
infrastructural funds, exclusive of trust funds, transfers
and nonrecurring income. (Rollo, p. 6)
Due to the constraints brought about by the
supervening Christmas holidays during which the
Court was in recess and unable to timely consider the
petition, a supplemental pleading was filed by
petitioners on January 4, 1986, averring therein that
the plebiscite sought to be restrained by them was
held on January 3, 1986 as scheduled but that there
are still serious issues raised in the instant case
affecting the legality, constitutionality and validity of
such exercise which should properly be passed upon
and resolved by this Court.
The plebiscite was confined only to the inhabitants of
the territory of Negros del N•rte, namely: the Cities of
Silay, Cadiz, and San Carlos, and the municipalities of
Calatrava, Taboso, Escalante, Sagay, Manapla,
Victorias, E.B. Magalona and Don Salvador
Benedicto. Because of the exclusions of the voters
from the rest of the province of Negros Occidental,
petitioners found need to change the prayer of their
petition "to the end that the constitutional issues which
they have raised in the action will be ventilated and
given final resolution.'"At the same time, they asked
that the effects of the plebiscite which they sought to
stop be suspended until the Supreme Court shall
have rendered its decision on the very fundamental
and far-reaching questions that petitioners have
brought out.
Acknowledging in their supplemental petition that
supervening events rendered moot the prayer in their
initial petition that the plebiscite scheduled for January
3, 1986, be enjoined, petitioners plead, nevertheless,
that-
... a writ of Prohibition be issued, directed to
Respondent Commission on Elections to desist from
issuing official proclamation of the results of the
plebiscite held on January 3, 1986.

Finding that the exclusion and non-participation of the
voters of the Province of Negros Occidental other
than those living within the territory of the new
province of Negros del Norte to be not in accordance
with the Constitution, that a writ of mandamus be
issued, directed to the respondent Commission on
Elections, to schedule the holding of another
plebiscite at which all the qualified voters of the entire
Province of Negros Occidental as now existing shall
participate, at the same time making pronouncement
that the plebiscite held on January 3, 1986 has no
legal effect, being a patent legal nullity;
And that a similar writ of Prohibition be issued,
directed to the respondent Provincial Treasurer, to
desist from ordering the release of any local funds to
answer for expenses incurred in the holding of such
plebiscite until ordered by the Court. (Rollo pp. 9-10).
Petitioners further prayed that the respondent
COMELEC hold in abeyance the issuance of any
official proclamation of the results of the aforestated
plebiscite.
During the pendency of this case, a motion that he be
allowed to appear as amicus curiae in this case
(dated December 27, 1985 and filed with the Court on
January 2, 1986) was submitted by former Senator
Ambrosio Padilla. Said motion was granted in Our
resolution of January 2, 1986.
Acting on the petition, as well as on the supplemental
petition for prohibition with preliminary injunction with
prayer for restraining order, the Court, on January 7,
1986 resolved, without giving due course to the same,
to require respondents to comment, not to file a
motion to dismiss. Complying with said resolution,
public respondents, represented by the Office of the
Solicitor General, on January 14, 1986, filed their
Comment, arguing therein that the challenged
statute.-Batas Pambansa 885, should be accorded
the presumption of legality. They submit that the said
law is not void on its face and that the petition does
not show a clear, categorical and undeniable
demonstration of the supposed infringement of the
Constitution. Respondents state that the powers of
the Batasang-Pambansa to enact the assailed law is
beyond question. They claim that Batas Pambansa
Big. 885 does not infringe the Constitution because
the requisites of the Local Government Code have
been complied with. Furthermore, they submit that
this case has now become moot and academic with
the proclamation of the new Province of Negros del
Norte.
Respondents argue that the remaining cities and
municipalities of the Province of Negros Occidental
not included in the area of the new Province of
Negros del Norte, de not fall within the meaning and
scope of the term "unit or units affected", as referred
to in Section 3 of Art. XI of our Constitution. On this
reasoning, respondents maintain that Batas
Pambansa Blg. 885 does not violate the Constitution,
invoking and citing the case of Governor Zosimo
Paredes versus the Honorable Executive Secretary to
the President, et al. (G.R. No. 55628, March 2, 1984
(128 SCRA 61), particularly the pronouncements
therein, hereunder quoted:
1. Admittedly,this is one of those cases where the
discretion of the Court is allowed considerable
leeway. There is indeed an element of ambiguity in
the use of the expression 'unit or units affected'. It is
plausible to assert as petitioners do that when certain
Barangays are separated from a parent municipality
to form a new one, all the voters therein are affected.
It is much more persuasive, however, to contend as
respondents do that the acceptable construction is for
those voters, who are not from the barangays to be
separated, should be excluded in the plebiscite.
2. For one thing, it is in accordance with the settled
doctrine that between two possible constructions, one
avoiding a finding of unconstitutionality and the other
yielding such a result, the former is to be preferred.
That which will save, not that which will destroy,
commends itself for acceptance. After all, the basic
presumption all these years is one of validity. ...
3. ... Adherence to such philosophy compels the
conclusion that when there are indications that the
inhabitants of several barangays are inclined to
separate from a parent municipality they should be
allowed to do so. What is more logical than to
ascertain their will in a plebiscite called for that
purpose. It is they, and they alone, who shall
constitute the new unit. New responsibilities will be
assumed. New burdens will be imposed. A new
municipal corporation will come into existence. Its
birth will be a matter of choice-their choice. They
should be left alone then to decide for themselves. To
allow other voters to participate will not yield a true
expression of their will. They may even frustrate it,
That certainly will be so if they vote against it for
selfish reasons, and they constitute the majority. That
is not to abide by the fundamental principle of the
Constitution to promote local autonomy, the
preference being for smaller units. To rule as this
Tribunal does is to follow an accepted principle of
constitutional construction, that in ascertaining the
meaning of a particular provision that may give rise to
doubts, the intent of the framers and of the people
may be gleaned from provisions in pari materia.
Respondents submit that said ruling in the aforecited
case applies equally with force in the case at bar.
Respondents also maintain that the requisites under
the Local Government Code (P.D. 337) for the
creation of the new province of Negros del Norte have
all been duly complied with, Respondents discredit
petitioners' allegations that the requisite area of 3,500
square kilometers as so prescribed in the Local
Government Code for a new province to be created
has not been satisfied. Petitioners insist that the area
which would comprise the new province of Negros del
Norte, would only be about 2,856.56 square
kilometers and which evidently would be lesser than
the minimum area prescribed by the governing
statute. Respondents, in this regard, point out and
stress that Section 2 of Batas Pambansa Blg. 885
creating said new province plainly declares that the
territorial boundaries of Negros del Norte comprise an
area of 4,019.95 square kilometers, more or less.
As a final argument, respondents insist that instant
petition has been rendered moot and academic
considering that a plebiscite has been already
conducted on January 3, 1986; that as a result
thereof, the corresponding certificate of canvass
indicated that out of 195,134 total votes cast in said
plebiscite, 164,734 were in favor of the creation of
Negros del Norte and 30,400 were against it; and
because "the affirmative votes cast represented a
majority of the total votes cast in said plebiscite, the
Chairman of the Board of Canvassers proclaimed the
new province which shall be known as "Negros del
Norte". Thus, respondents stress the fact that
following the proclamation of Negros del Norte
province, the appointments of the officials of said
province created were announced. On these
considerations, respondents urge that this case
should be dismissed for having been rendered moot
and academic as the creation of the new province is
now a "fait accompli."
In resolving this case, it will be useful to note and
emphasize the facts which appear to be agreed to by
the parties herein or stand unchallenged.
Firstly, there is no disagreement that the Provincial
Treasurer of the Province of Negros Occidental has
not disbursed, nor was required to disburse any public
funds in connection with the plebiscite held on
January 3, 1986 as so disclosed in the Comment to
the Petition filed by the respondent Provincial
Treasurer of Negros Occidental dated January 20,
1986 (Rollo, pp. 36-37). Thus, the prayer of the
petitioners that said Provincial Treasurer be directed
by this Court to desist from ordering the release of
any public funds on account of such plebiscite should
not longer deserve further consideration.
Secondly, in Parliamentary Bill No. 3644 which led to
the enactment of Batas Pambansa Blg. 885 and the
creation of the new Province of Negros del Norte, it
expressly declared in Sec. 2 of the aforementioned
Parliamentary Bill, the following:
SEC. 2. The boundaries of the new province
shall be the southern limits of the City of Silay, the
Municipality of Salvador Benedicto and the City of
San Carlos on the South and the natural boundaries
of the northern portion of the Island of Negros on the
West, North and East, containing an area of 285,656
hectares more or less. (Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was
very quickly enacted into Batas Pambansa Blg. 885,
the boundaries of the new Province of Negros del
Norte were defined therein and its boundaries then
stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San
Carlos and the municipalities of Calatrava, Toboso,
Escalante, Sagay, Manapla, Victorias, E.R. Magalona;
and Salvador Benedicto, all in the northern portion of
the Island of Negros, are hereby separated from the
Province of Negros Occidental and constituted into a
new province to be known as the Province of Negros
del Norte.
SEC. 1. The boundaries of the new province shall be
the southern limits of the City of Silay, the Municipality
of Salvador Benedicto and the City of San Carlos on
the south and the territorial limits of the northern
portion of the Island of Negros on the West, North and
East, comprising a territory of 4,019.95 square
kilometers more or less.
Equally accepted by the parties is the fact that under
the certification issued by Provincial Treasurer Julian
L. Ramirez of the Province of Negros Occidental,
dated July 16, 1985, it was therein certified as follows:
xxx xxx xxx
This is to certify that the following cities and
municipalities of Negros Occidental have the land
area as indicated hereunder based on the Special
Report No. 3, Philippines 1980, Population, Land Area
and Density: 1970, 1975 and 1980 by the National
Census and Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City
...................................................................214.8
Provincial Treasurer (Exh. "C" of Petition, Rollo, p.
90).

2. E.B.
Magalona............................................................113.3
Although in the above certification it is stated that the
land area of the relatively new municipality of Don
Salvador Benedicto is not available, it is an
3. uncontradicted fact that the area comprising Don
Victorias............................................................ Salvador municipality, one of the component units of
.........133.9 the new province, was derived from the City of San
Carlos and from the Municipality of Calatrava, Negros
Occidental, and added thereto was a portion of about
one-fourth the land area of the town of Murcia, Negros
Occidental. It is significant to note the uncontroverted
4.
submission of petitioners that the total land area of the
Manapla............................................................
entire municipality of Murcia, Negros Occidental is
..........112.9
only 322.9 square kilometers (Exh. "D", Rollo, p. 91).
One-fourth of this total land area of Murcia that was
added to the portions derived from the land area of
Calatrava, Negros Occidental and San Carlos City
5. Cadiz City (Negros Occidental) would constitute, therefore, only
..................................................................516.5 80.2 square kilometers. This area of 80.2 square
kilometers if then added to 2,685.2 square kilometers,
representing the total land area of the Cities of Silay,
San Carlos and Cadiz and the Municipalities of E.R.
6. Sagay Magalona, Victorias, Manapla, Sagay, Escalante,
.........................................................................389.6 Taboso and Calatrava, will result in approximately an
area of only 2,765.4 square kilometers using as basis
the Special Report, Philippines 1980, Population,
Land Area and Density: 1970, 1975 and 1980 of the
7. Escalante National Census and Statistics Office, Manila (see
Exhibit "C", Rollo, p. 90).
....................................................................124.0

8. No controversion has been made by respondent with

Toboso.............................................................. respect to the allegations of petitioners that the
.........123.4 original provision in the draft legislation, Parliamentary
Bill No. 3644, reads:

9.
Calatrava.......................................................... SEC. 4. A plebiscite shall be conducted in the
...........504.5 areas affected within a period of one hundred and
twenty days from the approval of this Act. After the
ratification of the creation of the Province of Negros
del Norte by a majority of the votes cast in such
plebiscite, the President shall appoint the first officials
10. San Carlos of the new province.
City...........................................................451.3

However, when Batas Pambansa Blg. 885 was

11. Don Salvador enacted, there was a significant change in the above
Benedicto.................................... (not available) provision. The statute, as modified, provides that the
requisite plebiscite "shall be conducted in the
proposed new province which are the areas affected."

This certification is issued upon the request of Dr.

Patricio Y. Tan for whatever purpose it may serve
him. It is this legislative determination limiting the plebiscite
exclusively to the cities and towns which would
comprise the new province that is assailed by the
petitioners as violative of the provisions of our
(SGD.) JULIAN L. RAMIREZ Constitution. Petitioners submit that Sec. 3, ART XI
thereof, contemplates a plebiscite that would be held
in the unit or units affected by the creation of the new
province as a result of the consequent division of and
substantial alteration of the boundaries of the existing
province. In this instance, the voters in the remaining
areas of the province of Negros Occidental should
have been allowed to participate in the questioned
plebiscite.
Considering that the legality of the plebiscite itself is
challenged for non-compliance with constitutional
requisites, the fact that such plebiscite had been held
and a new province proclaimed and its officials
appointed, the case before Us cannot truly be viewed
as already moot and academic. Continuation of the
existence of this newly proclaimed province which
petitioners strongly profess to have been illegally
born, deserves to be inquired into by this Tribunal so
that, if indeed, illegality attaches to its creation, the
commission of that error should not provide the very
excuse for perpetuation of such wrong. For this Court
to yield to the respondents' urging that, as there has
been fait accompli then this Court should passively
accept and accede to the prevailing situation is an
unacceptable suggestion. Dismissal of the instant
petition, as respondents so propose is a proposition
fraught with mischief. Respondents' submission will
create a dangerous precedent. Should this Court
decline now to perform its duty of interpreting and
indicating what the law is and should be, this might
tempt again those who strut about in the corridors of
power to recklessly and with ulterior motives, create,
merge, divide and/or alter the boundaries of political
subdivisions, either brazenly or stealthily, confident
that this Court will abstain from entertaining future
challenges to their acts if they manage to bring about
a fait accompli.
In the light of the facts and circumstances alluded to
by petitioners as attending to the unusually rapid
creation of the instant province of Negros del Norte
after a swiftly scheduled plebiscite, this Tribunal has
the duty to repudiate and discourage the commission
of acts which run counter to the mandate of our
fundamental law, done by whatever branch of our
government. This Court gives notice that it will not
look with favor upon those who may be hereafter
inclined to ram through all sorts of legislative
measures and then implement the same with indecent
haste, even if such acts would violate the Constitution
and the prevailing statutes of our land. It is illogical to
ask that this Tribunal be blind and deaf to protests on
the ground that what is already done is done. To such
untenable argument the reply would be that, be this
so, the Court, nevertheless, still has the duty and right
to correct and rectify the wrong brought to its
attention.
On the merits of the case.
Aside from the simpler factual issue relative to the
land area of the new province of Negros del Norte, the
more significant and pivotal issue in the present case
revolves around in the interpretation and application in
the case at bar of Article XI, Section 3 of the
Constitution, which being brief and for convenience,
We again quote:
SEC. 3. No province, city, municipality or barrio may
be created, divided, merged abolished, or its
boundary substantially altered, except in accordance
with the criteria established in the local government
code, and subject to the approval by a majority of the
votes in a plebiscite in the unit or units affected.
It can be plainly seen that the aforecited constitutional
provision makes it imperative that there be first
obtained "the approval of a majority of votes in the
plebiscite in the unit or units affected" whenever a
province is created, divided or merged and there is
substantial alteration of the boundaries. It is thus
inescapable to conclude that the boundaries of the
existing province of Negros Occidental would
necessarily be substantially altered by the division of
its existing boundaries in order that there can be
created the proposed new province of Negros del
Norte. Plain and simple logic will demonstrate than
that two political units would be affected. The first
would be the parent province of Negros Occidental
because its boundaries would be substantially altered.
The other affected entity would be composed of those
in the area subtracted from the mother province to
constitute the proposed province of Negros del Norte.
We find no way to reconcile the holding of a plebiscite
that should conform to said constitutional requirement
but eliminates the participation of either of these two
component political units. No amount of rhetorical
flourishes can justify exclusion of the parent province
in the plebiscite because of an alleged intent on the
part of the authors and implementors of the
challenged statute to carry out what is claimed to be a
mandate to guarantee and promote autonomy of local
government units. The alleged good intentions cannot
prevail and overrule the cardinal precept that what our
Constitution categorically directs to be done or
imposes as a requirement must first be observed,
respected and complied with. No one should be
allowed to pay homage to a supposed fundamental
policy intended to guarantee and promote autonomy
of local government units but at the same time
transgress, ignore and disregard what the Constitution
commands in Article XI Section 3 thereof.
Respondents would be no different from one who
hurries to pray at the temple but then spits at the Idol
therein.
We find no merit in the submission of the respondents
that the petition should be dismissed because the
motive and wisdom in enacting the law may not be
challenged by petitioners. The principal point raised
by the petitioners is not the wisdom and motive in
enacting the law but the infringement of the
Constitution which is a proper subject of judicial
inquiry.

Petitioners' discussion regarding the motives behind
the enactment of B.P. Blg. 885 to say the least, are
most enlightening and provoking but are factual
issues the Court cannot properly pass upon in this
case. Mention by petitioners of the unexplained
changes or differences in the proposed Parliamentary
Bill No. 3644 and the enacted Batas Pambansa Blg.
885; the swift and surreptitious manner of passage
and approval of said law; the abrupt scheduling of the
plebiscite; the reference to news articles regarding the
questionable conduct of the said plebiscite held on
January 3, 1986; all serve as interesting reading but
are not the decisive matters which should be
reckoned in the resolution of this case.
What the Court considers the only significant
submissions lending a little support to respondents'
case is their reliance on the rulings and
pronouncements made by this Court in the case of
Governor Zosimo Paredes versus The Honorable
Executive Secretary to the President, et al., G.R. No.
55628, March 2, 1984 (128 SCRA 6). In said case
relating to a plebiscite held to ratify the creation of a
new municipality from existing barangays, this Court
upheld the legality of the plebiscite which was
participated in exclusively by the people of the
barangay that would constitute the new municipality.
This Court is not unmindful of this solitary case
alluded to by respondents. What is, however, highly
significant are the prefatory statements therein stating
that said case is "one of those cases where the
discretion of the Court is allowed considerable
leeway" and that "there is indeed an element of
ambiguity in the use of the expression unit or units
affected." The ruling rendered in said case was based
on a claimed prerogative of the Court then to exercise
its discretion on the matter. It did not resolve the
question of how the pertinent provision of the
Constitution should be correctly interpreted.
The ruling in the aforestated case of Paredes vs. The
Honorable Executive Secretary, et al. (supra) should
not be taken as a doctrinal or compelling precedent
when it is acknowledged therein that "it is plausible to
assert, as petitioners do, that when certain Barangays
are separated from a parent municipality to form a
new one, all the voters therein are affected."
It is relevant and most proper to mention that in the
aforecited case of Paredes vs. Executive Secretary,
invoked by respondents, We find very lucidly
expressed the strong dissenting view of Justice
Vicente Abad Santos, a distinguished member of this
Court, as he therein voiced his opinion, which We
hereunder quote:
2. ... when the Constitution speaks of "the unit or units
affected" it means all of the people of the municipality
if the municipality is to be divided such as in the case
at bar or an of the people of two or more
municipalities if there be a merger. I see no ambiguity
in the Constitutional provision.
This dissenting opinion of Justice Vicente Abad
Santos is the— forerunner of the ruling which We now
consider applicable to the case at bar, In the
analogous case of Emilio C. Lopez, Jr., versus the
Honorable Commission on Elections, L-56022, May
31, 1985, 136 SCRA 633, this dissent was reiterated
by Justice Abad Santos as he therein assailed as
suffering from a constitutional infirmity a referendum
which did not include all the people of Bulacan and
Rizal, when such referendum was intended to
ascertain if the people of said provinces were willing
to give up some of their towns to Metropolitan Manila.
His dissenting opinion served as a useful guideline in
the instant case.
Opportunity to re-examine the views formerly held in
said cases is now afforded the present Court. The
reasons in the mentioned cases invoked by
respondents herein were formerly considered
acceptable because of the views then taken that local
autonomy would be better promoted However, even
this consideration no longer retains persuasive value.
The environmental facts in the case before Us readily
disclose that the subject matter under consideration is
of greater magnitude with concomitant multifarious
complicated problems. In the earlier case, what was
involved was a division of a barangay which is the
smallest political unit in the Local Government Code.
Understandably, few and lesser problems are
involved. In the case at bar, creation of a new
province relates to the largest political unit
contemplated in Section 3, Art. XI of the Constitution.
To form the new province of Negros del Norte no less
than three cities and eight municipalities will be
subtracted from the parent province of Negros
Occidental. This will result in the removal of
approximately 2,768.4 square kilometers from the
land area of an existing province whose boundaries
will be consequently substantially altered. It becomes
easy to realize that the consequent effects cf the
division of the parent province necessarily will affect
all the people living in the separate areas of Negros
Occidental and the proposed province of Negros del
Norte. The economy of the parent province as well as
that of the new province will be inevitably affected,
either for the better or for the worse. Whatever be the
case, either or both of these political groups will be
affected and they are, therefore, the unit or units
referred to in Section 3 of Article XI of the Constitution
which must be included in the plebiscite contemplated
therein.
It is a well accepted rule that "in ascertaining the
meaning of a particular provision that may give rise to
doubts, the intent of the framers and of the people,
may be gleaned from the provisions in pari materia."
Parliamentary Bill No. 3644 which proposed the
creation of the new province of Negros del Norte
recites in Sec. 4 thereof that "the plebiscite shall be
conducted in the areas affected within a period of one
hundred and twenty days from the approval of this
Act." As this draft legislation speaks of "areas," what
was contemplated evidently are plurality of areas to
participate in the plebiscite. Logically, those to be
included in such plebiscite would be the people living
in the area of the proposed new province and those
living in the parent province. This assumption will be
consistent with the requirements set forth in the
Constitution.
We fail to find any legal basis for the unexplained
change made when Parliamentary Bill No. 3644 was
enacted into Batas Pambansa Blg. 885 so that it is
now provided in said enabling law that the plebiscite
"shall be conducted in the proposed new province
which are the areas affected." We are not disposed to
agree that by mere legislative fiat the unit or units
affected referred in the fundamental law can be
diminished or restricted by the Batasang Pambansa to
cities and municipalities comprising the new province,
thereby ignoring the evident reality that there are
other people necessarily affected.
In the mind of the Court, the change made by those
responsible for the enactment of Batas Pambansa
Blg. 885 betrays their own misgivings. They must
have entertained apprehensions that by holding the
plebiscite only in the areas of the new proposed
province, this tactic will be tainted with illegality. In
anticipation of a possible strong challenge to the
legality of such a plebiscite there was, therefore,
deliberately added in the enacted statute a self-
serving phrase that the new province constitutes the
area affected. Such additional statement serves no
useful purpose for the same is misleading, erroneous
and far from truth. The remaining portion of the parent
province is as much an area affected. The substantial
alteration of the boundaries of the parent province, not
to mention the other adverse economic effects it might
suffer, eloquently argue the points raised by the
petitioners.
Petitioners have averred without contradiction that
after the creation of Negros del Norte, the province of
Negros Occidental would be deprived of the long
established Cities of Silay, Cadiz, and San Carlos, as
well as the municipality of Victorias. No controversion
has been made regarding petitioners' assertion that
the areas of the Province of Negros Occidental will be
diminished by about 285,656 hectares and it will lose
seven of the fifteen sugar mills which contribute to the
economy of the whole province. In the language of
petitioners, "to create Negros del Norte, the existing
territory and political subdivision known as Negros
Occidental has to be partitioned and dismembered.
What was involved was no 'birth' but "amputation."
We agree with the petitioners that in the case of
Negros what was involved was a division, a
separation; and consequently, as Sec. 3 of Article XI
of the Constitution anticipates, a substantial alteration
of boundary.
As contended by petitioners,—
Indeed, the terms 'created', 'divided', 'merged',
'abolished' as used in the constitutional provision do
not contemplate distinct situation isolated from the
mutually exclusive to each other. A Province maybe
created where an existing province is divided or two
provinces merged. Such cases necessarily will involve
existing unit or units abolished and definitely the
boundary being substantially altered.
It would thus be inaccurate to state that where an
existing political unit is divided or its boundary
substantially altered, as the Constitution provides,
only some and not all the voters in the whole unit
which suffers dismemberment or substantial alteration
of its boundary are affected. Rather, the contrary is
true.
It is also Our considered view that even hypothetically
assuming that the merits of this case can depend on
the mere discretion that this Court may exercise,
nevertheless, it is the petitioners' case that deserve to
be favored.
It is now time for this Court to set aside the
equivocations and the indecisive pronouncements in
the adverted case of Paredes vs. the Honorable
Executive Secretary, et al. (supra). For the reasons
already here express, We now state that the ruling in
the two mentioned cases sanctioning the exclusion of
the voters belonging to an existing political unit from
which the new political unit will be derived, from
participating in the plebiscite conducted for the
purpose of determining the formation of another new
political unit, is hereby abandoned.
In their supplemental petition, dated January 4, 1986,
it is prayed for by petitioners that a writ of mandamus
be issued, directing the respondent Commission on
Elections, to schedule the holding of another
plebiscite at which all the qualified voters of the entire
province of Negros Occidental as now existing shall
participate and that this Court make a pronouncement
that the plebiscite held on January 3, 1986 has no
legal effect for being a patent nullity.
The Court is prepared to declare the said plebiscite
held on January 3, 1986 as null and void and violative
of the provisions of Sec. 3, Article XI of the
Constitution. The Court is not, however, disposed to
direct the conduct of a new plebiscite, because We
find no legal basis to do so. With constitutional
infirmity attaching to the subject Batas Pambansa Big.
885 and also because the creation of the new
province of Negros del Norte is not in accordance with
the criteria established in the Local Government
Code, the factual and legal basis for the creation of
such new province which should justify the holding of
another plebiscite does not exist.
Whatever claim it has to validity and whatever
recognition has been gained by the new province of
Negros del Norte because of the appointment of the
officials thereof, must now be erased. That Negros del
Norte is but a legal fiction should be announced. Its
existence should be put to an end as quickly as
possible, if only to settle the complications currently
attending to its creation. As has been manifested, the
parent province of Negros del Norte has been
impleaded as the defendant in a suit filed by the new
Province of Negros del Norte, before the Regional
Trial Court of Negros (del Norte), docketed as Civil
Case No. 169-C, for the immediate allocation,
distribution and transfer of funds by the parent
province to the new province, in an amount claimed to
be at least P10,000,000.00.
The final nail that puts to rest whatever pretension
there is to the legality of the province of Negros del
Norte is the significant fact that this created province
does not even satisfy the area requirement prescribed
in Section 197 of the Local Government Code, as
earlier discussed.
It is of course claimed by the respondents in their
Comment to the exhibits submitted by the petitioners
(Exhs. C and D, Rollo, pp. 19 and 91), that the new
province has a territory of 4,019.95 square kilometers,
more or less. This assertion is made to negate the
proofs submitted, disclosing that the land area of the
new province cannot be more than 3,500 square
kilometers because its land area would, at most, be
only about 2,856 square kilometers, taking into
account government statistics relative to the total area
of the cities and municipalities constituting Negros del
Norte. Respondents insist that when Section 197 of
the Local Government Code speaks of the territory of
the province to be created and requires that such
territory be at least 3,500 square kilometers, what is
contemplated is not only the land area but also the
land and water over which the said province has
jurisdiction and control. It is even the submission of
the respondents that in this regard the marginal sea
within the three mile limit should be considered in
determining the extent of the territory of the new
province. Such an interpretation is strained, incorrect,
and fallacious.
The last sentence of the first paragraph of Section
197 is most revealing. As so stated therein the
"territory need not be contiguous if it comprises two or
more islands." The use of the word territory in this
particular provision of the Local Government Code
and in the very last sentence thereof, clearly reflects
that "territory" as therein used, has reference only to
the mass of land area and excludes the waters over
which the political unit exercises control.
Said sentence states that the "territory need not be
contiguous." Contiguous means (a) in physical
contact; (b) touching along all or most of one side; (c)
near, text, or adjacent (Webster's New World
Dictionary, 1972 Ed., p. 307). "Contiguous", when
employed as an adjective, as in the above sentence,
is only used when it describes physical contact, or a
touching of sides of two solid masses of matter. The
meaning of particular terms in a statute may be
ascertained by reference to words associated with or
related to them in the statute (Animal Rescue League
vs. Assessors, 138 A.L.R. p. 110). Therefore, in the
context of the sentence above, what need not be
"contiguous" is the "territory" the physical mass of
land area. There would arise no need for the
legislators to use the word contiguous if they had
intended that the term "territory" embrace not only
land area but also territorial waters. It can be safely
concluded that the word territory in the first paragraph
of Section 197 is meant to be synonymous with "land
area" only. The words and phrases used in a statute
should be given the meaning intended by the
legislature (82 C.J.S., p. 636). The sense in which the
words are used furnished the rule of construction (In
re Winton Lumber Co., 63 p. 2d., p. 664).
The distinction between "territory" and "land area"
which respondents make is an artificial or strained
construction of the disputed provision whereby the
words of the statute are arrested from their plain and
obvious meaning and made to bear an entirely
different meaning to justify an absurd or unjust result.
The plain meaning in the language in a statute is the
safest guide to follow in construing the statute. A
construction based on a forced or artificial meaning of
its words and out of harmony of the statutory scheme
is not to be favored (Helvering vs. Hutchings, 85 L.
Ed., p. 909).
It would be rather preposterous to maintain that a
province with a small land area but which has a long,
narrow, extended coast line, (such as La Union
province) can be said to have a larger territory than a
land-locked province (such as Ifugao or Benguet)
whose land area manifestly exceeds the province first
mentioned.
Allegations have been made that the enactment of the
questioned state was marred by "dirty tricks", in the
introduction and passing of Parliamentary Bill No.
3644 "in secret haste" pursuant to sinister designs to
achieve "pure and simple gerrymandering; "that
recent happenings more than amply demonstrate that
far from guaranteeing its autonomy it (Negros del
Norte) has become the fiefdom of a local strongman"
(Rollo, p. 43; emphasis supplied).
 COMMISSION ON ELECTIONS, respondent.

It is not for this Court to affirm or reject such matters

not only because the merits of this case can be
resolved without need of ascertaining the real motives RESOLUTION
and wisdom in the making of the questioned law. No
proper challenge on those grounds can also be made
by petitioners in this proceeding. Neither may this
Court venture to guess the motives or wisdom in the
exercise of legislative powers. Repudiation of
improper or unwise actions taken by tools of a political
machinery rests ultimately, as recent events have
shown, on the electorate and the power of a vigilant
people. FELICIANO, J.:

Petitioners herein deserve and should receive the
gratitude of the people of the Province of Negros
Occidental and even by our Nation. Commendable is
the patriotism displayed by them in daring to institute
this case in order to preserve the continued existence
of their historic province. They were inspired
undoubtedly by their faithful commitment to our
Constitution which they wish to be respected and
obeyed. Despite the setbacks and the hardships
which petitioners aver confronted them, they valiantly
and unfalteringly pursued a worthy cause. A happy
destiny for our Nation is assured as long as among
our people there would be exemplary citizens such as
the petitioners herein.
The Philippine Press Institute, Inc. ("PPI") is before
this Court assailing the constitutional validity of
Resolution No. 2772 issued by respondent
Commission on Elections ("Comelec") and its
corresponding Comelec directive dated 22 March
1995, through a Petition for Certiorari and Prohibition.
Petitioner PPI is a non-stock, non-profit organization
of newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution
No. 2772, which reads in part:

xxx xxx xxx

WHEREFORE, Batas Pambansa Blg. 885 is hereby
declared unconstitutional. The proclamation of the
new province of Negros del Norte, as well as the
appointment of the officials thereof are also declared
null and void.
SO ORDERED.
Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez,
Jr., Cruz and Paras, JJ., concur.
Sec. 2. Comelec Space. — The Commission shall
procure free print space of not less than one half (1/2)
page in at least one newspaper of general circulation
in every province or city for use as "Comelec Space"
from March 6, 1995 in the case of candidates for
senator and from March 21, 1995 until May 12, 1995.
In the absence of said newspaper, "Comelec Space"
shall be obtained from any magazine or periodical of
said province or city.

Sec. 3. Uses of Comelec Space. — "Comelec Space"

Melencio-Herrera, J., concurs in the result.
shall be allocated by the Commission, free of charge,
among all candidates within the area in which the
newspaper, magazine or periodical is circulated to
enable the candidates to make known their
qualifications, their stand on public issues and their
platforms and programs of government.

G.R. No. L-119694 May 22, 1995

"Comelec Space" shall also be used by the
Commission for dissemination of vital election
information.
PHILIPPINE PRESS INSTITUTE, INC., for and in
behalf of 139 members, represented by its President,
Amado P. Macasaet and its Executive Director Ermin
F. Garcia, Jr., petitioner,
Sec. 4. Allocation of Comelec Space. — (a) "Comelec
Space" shall also be available to all candidates during
vs.
the periods stated in Section 2 hereof. Its allocation
shall be equal and impartial among all candidates for
the same office. All candidates concerned shall be
furnished a copy of the allocation of "Comelec Space"
for their information, guidance and compliance.
(b) Any candidate desiring to avail himself of
"Comelec Space" from newspapers or publications
based in the Metropolitan Manila Area shall submit an
application therefor, in writing, to the Committee on
Mass Media of the Commission. Any candidate
desiring to avail himself of "Comelec Space" in
newspapers or publications based in the provinces
shall submit his application therefor, in writing, to the
Provincial Election Supervisor concerned.
Applications for availment of "Comelec Space" maybe
filed at any time from the date of effectivity of this
Resolution.
(c) The Committee on Mass Media and the
Provincial Election Supervisors shall allocate available
"Comelec Space" among the candidates concerned
by lottery of which said candidates shall be notified in
advance, in writing, to be present personally or by
representative to witness the lottery at the date, time
and place specified in the notice. Any party objecting
to the result of the lottery may appeal to the
Commission.
(d) The candidates concerned shall be notified by
the Committee on Mass Media or the Provincial
Election Supervisor, as the case maybe, sufficiently in
advance and in writing of the date of issue and the
newspaper or publication allocated to him, and the
time within which he must submit the written material
for publication in the "Comelec Space".
xxx xxx xxx
Sec. 8. Undue Reference to Candidates/Political
Parties in Newspapers. — No newspaper or
publication shall allow to be printed or published in the
news, opinion, features, or other sections of the
newspaper or publication accounts or comments
which manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring to or
including therein said candidate or political party.
However, unless the facts and circumstances clearly
indicate otherwise, the Commission will respect the
determination by the publisher and/or editors of the
newspapers or publications that the accounts or views
published are significant, newsworthy and of public
interest. (Emphasis supplied)
Apparently in implementation of this Resolution,
Comelec through Commissioner Regalado E.
Maambong sent identical letters, dated 22 March
1995, to various publishers of newspapers like the
Business World, the Philippine Star, the Malaya and
the Philippine Times Journal, all members of PPI.
These letters read as follows:
This is to advise you that pursuant to Resolution No.
2772 of the Commission on Elections, you are
directed to provide free print space of not less than
one half (1/2) page for use as "Comelec Space" or
similar to the print support which you have extended
during the May 11, 1992 synchronized elections which
was 2 full pages for each political party fielding
senatorial candidates, from March 6, 1995 to May 6,
1995, to make known their qualifications, their stand
on public issues and their platforms and programs of
government.
We shall be informing the political parties and
candidates to submit directly to you their pictures,
biographical data, stand on key public issues and
platforms of government either as raw data or in the
form of positives or camera-ready materials.
Please be reminded that the political
parties/candidates may be accommodated in your
publication any day upon receipt of their materials
until May 6, 1995 which is the last day for
campaigning.
We trust you to extend your full support and
cooperation in this regard. (Emphasis supplied)
In this Petition for Certiorari and Prohibition with
prayer for the issuance of a Temporary Restraining
Order, PPI asks us to declare Comelec Resolution
No. 2772 unconstitutional and void on the ground that
it violates the prohibition imposed by the Constitution
upon the government, and any of its agencies, against
the taking of private property for public use without
just compensation. Petitioner also contends that the
22 March 1995 letter directives of Comelec requiring
publishers to give free "Comelec Space" and at the
same time process raw data to make it camera-ready,
constitute impositions of involuntary servitude,
contrary to the provisions of Section 18 (2), Article III
of the 1987 Constitution. Finally, PPI argues that
Section 8 of Comelec Resolution No. 2772 is violative
of the constitutionally guaranteed freedom of speech,
of the press and of expression.1
On 20 April 1995, this Court issued a Temporary
Restraining Order enjoining Comelec from enforcing
and implementing Section 2 of Resolution No. 2772,
as well as the Comelec directives addressed to
various print media enterprises all dated 22 March
1995. The Court also required the respondent to file a
Comment on the Petition.
The Office of the Solicitor General filed its Comment
on behalf of respondent Comelec alleging that
Comelec Resolution No. 2772 does not impose upon
the publishers any obligation to provide free print
space in the newspapers as it does not provide any
criminal or administrative sanction for non-compliance
with that Resolution. According to the Solicitor
General, the questioned Resolution merely
established guidelines to be followed in connection
with the procurement of "Comelec space," the
procedure for and mode of allocation of such space to
candidates and the conditions or requirements for the
candidate's utilization of the "Comelec space"
procured. At the same time, however, the Solicitor
General argues that even if the questioned Resolution
and its implementing letter directives are viewed as
mandatory, the same would nevertheless be valid as
an exercise of the police power of the State. The
Solicitor General also maintains that Section 8 of
Resolution No. 2772 is a permissible exercise of the
power of supervision or regulation of the Comelec
over the communication and information operations of
print media enterprises during the election period to
safeguard and ensure a fair, impartial and credible
election.2
At the oral hearing of this case held on 28 April 1995,
respondent Comelec through its Chairman, Hon.
Bernardo Pardo, in response to inquiries from the
Chief Justice and other Members of the Court, stated
that Resolution No. 2772, particularly Section 2
thereof and the 22 March 1995 letters dispatched to
various members of petitioner PPI, were not intended
to compel those members to supply Comelec with
free print space. Chairman Pardo represented to the
Court that Resolution and the related letter-directives
were merely designed to solicit from the publishers
the same free print space which many publishers had
voluntarily given to Comelec during the election period
relating to the 11 May 1992 elections. Indeed, the
Chairman stated that the Comelec would, that very
afternoon, meet and adopt an appropriate amending
or clarifying resolution, a certified true copy of which
would forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of
the Solicitor General a manifestation which attached a
copy of Comelec Resolution No. 2772-A dated 4 May
1995. The operative portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in
it by the Constitution, the Omnibus Election Code,
Republic Acts No. 6646 and 7166 and other election
laws, the Commission on Elections RESOLVED to
clarify Sections 2 and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772 shall not be
construed to mean as requiring publishers of the
different mass media print publications to provide print
space under pain of prosecution, whether
administrative, civil or criminal, there being no
sanction or penalty for violation of said Section
provided for either in said Resolution or in Section 90
of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, on the grant of "Comelec
space."
2. Section 8 of Res. No. 2772 shall not be
construed to mean as constituting prior restraint on
the part of publishers with respect to the printing or
publication of materials in the news, opinion, features
or other sections of their respective publications or
other accounts or comments, it being clear from the
last sentence of said Section 8 that the Commission
shall, "unless the facts and circumstances clearly
indicate otherwise . . . respect the determination by
the publisher and/or editors of the newspapers or
publications that the accounts or views published are
significant, newsworthy and of public interest."
This Resolution shall take effect upon approval.
(Emphasis in the original)
While, at this point, the Court could perhaps simply
dismiss the Petition for Certiorari and Prohibition as
having become moot and academic, we consider it
not inappropriate to pass upon the first constitutional
issue raised in this case. Our hope is to put this issue
to rest and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of
clarity in expression. Section 1 of Resolution No.
2772-A did not try to redraft Section 2; accordingly,
Section 2 of Resolution No. 2772 persists in its
original form. Thus, we must point out that, as
presently worded, and in particular as interpreted and
applied by the Comelec itself in its 22 March 1995
letter-directives to newspaper publishers, Section 2 of
Resolution No. 2772 is clearly susceptible of the
reading that petitioner PPI has given it. That
Resolution No. 2772 does not, in express terms,
threaten publishers who would disregard it or its
implementing letters with some criminal or other
sanction, does not by itself demonstrate that the
Comelec's original intention was simply to solicit or
request voluntary donations of print space from
publishers. A written communication officially directing
a print media company to supply free print space,
dispatched by a government (here a constitutional)
agency and signed by a member of the Commission
presumably legally authorized to do so, is bound to
produce a coercive effect upon the company so
addressed. That the agency may not be legally
authorized to impose, or cause the imposition of,
criminal or other sanctions for disregard of such
directions, only aggravates the constitutional
difficulties inhearing in the present situation. The
enactment or addition of such sanctions by the
legislative authority itself would be open to serious
constitutional objection.
To compel print media companies to donate
"Comelec-space" of the dimensions specified in
Section 2 of Resolution No. 2772 (not less than one-
half page), amounts to "taking" of private personal
property for public use or purposes. Section 2 failed to
specify the intended frequency of such compulsory
"donation:" only once during the period from 6 March
1995 (or 21 March 1995) until 12 May 1995? or
everyday or once a week? or as often as Comelec
may direct during the same period? The extent of the
taking or deprivation is not insubstantial; this is not a
case of a de minimis temporary limitation or restraint
upon the use of private property. The monetary value
of the compulsory "donation," measured by the
advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas,
may be very substantial indeed.
The taking of print space here sought to be effected
may first be appraised under the rubric of
expropriation of private personal property for public
use. The threshold requisites for a lawful taking of
private property for public use need to be examined
here: one is the necessity for the taking; another is the
legal authority to effect the taking. The element of
necessity for the taking has not been shown by
respondent Comelec. It has not been suggested that
the members of PPI are unwilling to sell print space at
their normal rates to Comelec for election purposes.
Indeed, the unwillingness or reluctance of Comelec to
buy print space lies at the heart of the problem. 3
Similarly, it has not been suggested, let alone
demonstrated, that Comelec has been granted the
power of eminent domain either by the Constitution or
by the legislative authority. A reasonable relationship
between that power and the enforcement and
administration of election laws by Comelec must be
shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is
not contested by petitioner PPI. We note only that,
under Section 3 of Resolution No. 2772, the free
"Comelec space" sought by the respondent
Commission would be used not only for informing the
public about the identities, qualifications and
programs of government of candidates for elective
office but also for "dissemination of vital election
information" (including, presumably, circulars,
regulations, notices, directives, etc. issued by
Comelec). It seems to the Court a matter of judicial
notice that government offices and agencies
(including the Supreme Court) simply purchase print
space, in the ordinary course of events, when their
rules and regulations, circulars, notices and so forth
need officially to be brought to the attention of the
general public.
The taking of private property for public use is, of
course, authorized by the Constitution, but not without
payment of "just compensation" (Article III, Section 9).
And apparently the necessity of paying compensation
for "Comelec space" is precisely what is sought to be
avoided by respondent Commission, whether Section
2 of Resolution No. 2772 is read as petitioner PPI
reads it, as an assertion of authority to require
newspaper publishers to "donate" free print space for
Comelec purposes, or as an exhortation, or perhaps
an appeal, to publishers to donate free print space, as
Section 1 of Resolution No. 2772-A attempts to
suggest. There is nothing at all to prevent newspaper
and magazine publishers from voluntarily giving free
print space to Comelec for the purposes contemplated
in Resolution No. 2772. Section 2 of Resolution No.
2772 does not, however, provide a constitutional
basis for compelling publishers, against their will, in
the kind of factual context here present, to provide
free print space for Comelec purposes. Section 2
does not constitute a valid exercise of the power of
eminent domain.
We would note that the ruling here laid down by the
Court is entirely in line with the theory of democratic
representative government. The economic costs of
informing the general public about the qualifications
and programs of those seeking elective office are
most appropriately distributed as widely as possible
throughout our society by the utilization of public
funds, especially funds raised by taxation, rather than
cast solely on one small sector of society, i.e., print
media enterprises. The benefits which flow from a
heightened level of information on and the awareness
of the electoral process are commonly thought to be
community-wide; the burdens should be allocated on
the same basis.
As earlier noted, the Solicitor General also contended
that Section 2 of Resolution No. 2772, even if read as
compelling publishers to "donate" "Comelec space, "
may be sustained as a valid exercise of the police
power of the state. This argument was, however,
made too casually to require prolonged consideration
on our part. Firstly, there was no effort (and
apparently no inclination on the part of Comelec) to
show that the police power — essentially a power of
legislation — has been constitutionally delegated to
respondent Commission.4 Secondly, while private
property may indeed be validly taken in the legitimate
exercise of the police power of the state, there was no
attempt to show compliance in the instant case with
the requisites of a lawful taking under the police
power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy
instrument that purports, without a showing of
existence of a national emergency or other imperious
public necessity, indiscriminately and without regard
to the individual business condition of particular
newspapers or magazines located in differing parts of
the country, to take private property of newspaper or
magazine publishers. No attempt was made to
demonstrate that a real and palpable or urgent
necessity for the taking of print space confronted the
Comelec and that Section 2 of Resolution No. 2772
was itself the only reasonable and calibrated
response to such necessity available to the Comelec.
Section 2 does not constitute a valid exercise of the
police power of the State.

We turn to Section 8 of Resolution No. 2772, which
needs to be quoted in full again:
Sec. 8. Undue Reference to Candidates/Political
Parties in Newspapers. — No newspaper or
publication shall allow to be printed or published in the
news, opinion, features, or other sections of the
newspaper or publication accounts or comments
which manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring to or
including therein said candidate or political party.
However, unless the facts and circumstances clearly
indicate otherwise, the Commission will respect the
determination by the publisher and/or editors of the
newspapers or publications that the accounts or views
published are significant, newsworthy and of public
interest.
It is not easy to understand why Section 8 was
included at all in Resolution No. 2772. In any case,
Section 8 should be viewed in the context of our
decision in National Press Club v. Commission on
Elections. 6 There the Court sustained the
constitutionality of Section 11 (b) of R.A. No. 6646,
known as the Electoral Reforms Law of 1987, which
prohibits the sale or donation of print space and
airtime for campaign or other political purposes,
except to the Comelec. In doing so, the Court
carefully distinguished (a) paid political
advertisements which are reached by the prohibition
of Section 11 (b), from (b) the reporting of news,
commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or
columnists which fall outside the scope of Section 11
(b) and which are protected by the constitutional
guarantees of freedom of speech and of the press:
Secondly, and more importantly, Section 11 (b) is
limited in its scope of application. Analysis of Section
11 (b) shows that it purports to apply only to the
purchase and sale, including purchase and sale
disguised as a donation, of print space and air time for
campaign or other political purposes. Section 11 (b)
does not purport in any way to restrict the reporting by
newspapers or radio or television stations of news or
news-worthy events relating to candidates, their
qualifications, political parties and programs of
government. Moreover, Section 11 (b) does not reach
commentaries and expressions of belief or opinion by
reporters or broadcaster or editors or commentators
or columnists in respect of candidates, their
qualifications, and programs and so forth, so long at
least as such comments, opinions and beliefs are not
in fact advertisements for particular candidates
covertly paid for. In sum, Section 11 (b) is not to be
read as reaching any report or commentary or other
coverage that, in responsible media, is not paid for by
candidates for political office. We read Section 11 (b)
as designed to cover only paid political
advertisements of particular candidates.
The above limitation in scope of application of Section
11 (b) — that it does not restrict either the reporting of
or the expression of belief or opinion or comment
upon the qualifications and programs and activities of
any and all candidates for office — constitutes the
critical distinction which must be made between the
instant case and that of Sanidad v. Commission on
Elections. . . . 7 (Citations omitted; emphasis
supplied)
Section 8 of Resolution No. 2772 appears to
represent the effort of the Comelec to establish a
guideline for implementation of the above-quoted
distinction and doctrine in National Press Club an
effort not blessed with evident success. Section 2 of
Resolution No. 2772-A while possibly helpful, does
not add substantially to the utility of Section 8 of
Resolution No. 2772. The distinction between paid
political advertisements on the one hand and news
reports, commentaries and expressions of belief or
opinion by reporters, broadcasters, editors, etc. on the
other hand, can realistically be given operative
meaning only in actual cases or controversies, on a
case-to-case basis, in terms of very specific sets of
facts.
At all events, the Court is bound to note that PPI has
failed to allege any specific affirmative action on the
part of Comelec designed to enforce or implement
Section 8. PPI has not claimed that it or any of its
members has sustained actual or imminent injury by
reason of Comelec action under Section 8. Put a little
differently, the Court considers that the precise
constitutional issue here sought to be raised —
whether or not Section 8 of Resolution No. 2772
constitutes a permissible exercise of the Comelec's
power under Article IX, Section 4 of the Constitution to
supervise or regulate the enjoyment or utilization of all
franchise or permits for the operation of — media of
communication or information — [for the purpose of
ensuring] equal opportunity, time and space, and the
right of reply, including reasonable, equal rates
therefore, for public information campaigns and
forums among candidates in connection with the
objective of holding free, orderly honest, peaceful and
credible elections —
is not ripe for judicial review for lack of an actual case
or controversy involving, as the very lis mota thereof,
the constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its
present form and as interpreted by Comelec in its 22
March 1995 letter directives, purports to require print
media enterprises to "donate" free print space to
Comelec. As such, Section 2 suffers from a fatal
constitutional vice and must be set aside and nullified.
2. To the extent it pertains to Section 8 of
Resolution No. 2772, the Petition for Certiorari and
Prohibition must be dismissed for lack of an actual,
justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for
Certiorari and Prohibition is GRANTED in part and
Section 2 of Resolution No. 2772 in its present form
and the related letter-directives dated 22 March 1995
are hereby SET ASIDE as null and void, and the
Temporary Restraining Order is hereby MADE
PERMANENT. The Petition is DISMISSED in part, to
the extent it relates to Section 8 of Resolution No.
2772. No pronouncement as to costs.
Narvasa, C.J., Padilla, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.
[G.R. No. 144516. February 11, 2004]
DEVELOPMENT BANK OF THE PHILIPPINES,
petitioner, vs. COMMISSION ON AUDIT, respondent.
DECISION
CARPIO, J.:
The Case
In this special civil action for certiorari,[1] the
Development Bank of the Philippines (DBP) seeks to
set aside COA Decision No. 98-403[2] dated 6
October 1998 (COA Decision) and COA Resolution
No. 2000-212[3] dated 1 August 2000 issued by the
Commission on Audit (COA). The COA affirmed Audit
Observation Memorandum (AOM) No. 93-2,[4] which
disallowed in audit the dividends distributed under the
Special Loan Program (SLP) to the members of the
DBP Gratuity Plan.
Antecedent Facts
The DBP is a government financial institution with an
original charter, Executive Order No. 81,[5] as
amended by Republic Act No. 8523[6] (DBP Charter).
The COA is a constitutional body with the mandate to
examine and audit all government instrumentalities
and investment of public funds.[7]
The COA Decision sets forth the undisputed facts of
this case as follows:
xxx [O]n February 20, 1980, the Development Bank of
the Philippines (DBP) Board of Governors adopted
Resolution No. 794 creating the DBP Gratuity Plan
and authorizing the setting up of a retirement fund to
cover the benefits due to DBP retiring officials and
employees under Commonwealth Act No. 186, as
amended. The Gratuity Plan was made effective on
June 17, 1967 and covered all employees of the Bank
as of May 31, 1977.
On February 26, 1980, a Trust Indenture was entered
into by and between the DBP and the Board of
Trustees of the Gratuity Plan Fund, vesting in the
latter the control and administration of the Fund. The
trustee, subsequently, appointed the DBP Trust
Services Department (DBP-TSD) as the investment
manager thru an Investment Management
Agreement, with the end in view of making the income
and principal of the Fund sufficient to meet the
liabilities of DBP under the Gratuity Plan.
In 1983, the Bank established a Special Loan
Program availed thru the facilities of the DBP
Provident Fund and funded by placements from the
Gratuity Plan Fund. This Special Loan Program was
adopted as part of the benefit program of the Bank to
provide financial assistance to qualified members to
enhance and protect the value of their gratuity
benefits because Philippine retirement laws and the
Gratuity Plan do not allow partial payment of
retirement benefits. The program was suspended in
1986 but was revived in 1991 thru DBP Board
Resolution No. 066 dated January 5, 1991.
Under the Special Loan Program, a prospective
retiree is allowed the option to utilize in the form of a
loan a portion of his outstanding equity in the gratuity
fund and to invest it in a profitable investment or
undertaking. The earnings of the investment shall
then be applied to pay for the interest due on the
gratuity loan which was initially set at 9% per annum
subject to the minimum investment rate resulting from
the updated actuarial study. The excess or balance of
the interest earnings shall then be distributed to the
investor-members.
Pursuant to the investment scheme, DBP-TSD paid to
the investor-members a total of P11,626,414.25
representing the net earnings of the investments for
the years 1991 and 1992. The payments were
disallowed by the Auditor under Audit Observation
Memorandum No. 93-2 dated March 1, 1993, on the
ground that the distribution of income of the Gratuity
Plan Fund (GPF) to future retirees of DBP is irregular
and constituted the use of public funds for private
purposes which is specifically proscribed under
Section 4 of P.D. 1445.[8]
AOM No. 93-2 did not question the authority of the
Bank to set-up the [Gratuity Plan] Fund and have it
invested in the Trust Services Department of the
Bank.[9] Apart from requiring the recipients of the
P11,626,414.25 to refund their dividends, the Auditor
recommended that the DBP record in its books as
miscellaneous income the income of the Gratuity Plan
Fund (Fund). The Auditor reasoned that the Fund is
still owned by the Bank, the Board of Trustees is a
mere administrator of the Fund in the same way that
the Trust Services Department where the fund was
invested was a mere investor and neither can the
employees, who have still an inchoate interest [i]n the
Fund be considered as rightful owner of the Fund.[10]
In a letter dated 29 July 1996,[11] former DBP
Chairman Alfredo C. Antonio requested then COA
Chairman Celso D. Gangan to reconsider AOM No.
93-2. Chairman Antonio alleged that the express trust
created for the benefit of qualified DBP employees
under the Trust Agreement[12] (Agreement) dated 26
February 1980 gave the Fund a separate legal
personality. The Agreement transferred legal title over
the Fund to the Board of Trustees and all earnings of
the Fund accrue only to the Fund. Thus, Chairman
Antonio contended that the income of the Fund is not
the income of DBP.
Chairman Antonio also asked COA to lift the
disallowance of the P11,626,414.25 distributed as
dividends under the SLP on the ground that the latter
was simply a normal loan transaction. He compared
the SLP to loans granted by other gratuity and
retirement funds, like the GSIS, SSS and DBP
Provident Fund.
The Ruling of the Commission on Audit
On 6 October 1998, the COA en banc affirmed AOM
No. 93-2, as follows:
The Gratuity Plan Fund is supposed to be accorded
separate personality under the administration of the
Board of Trustees but that concept has been
effectively eliminated when the Special Loan Program
was adopted. xxx
The Special Loan Program earns for the GPF an
interest of 9% per annum, subject to adjustment after
actuarial valuation. The investment scheme managed
by the TSD accumulated more than that as evidenced
by the payment of P4,568,971.84 in 1991 and
P7,057,442,41 in 1992, to the member-borrowers. In
effect, the program is grossly disadvantageous to the
government because it deprived the GPF of higher
investment earnings by the unwarranted
entanglement of its resources under the loan program
in the guise of giving financial assistance to the
availing employees. xxx
Retirement benefits may only be availed of upon
retirement. It can only be demanded and enjoyed
when the employee shall have met the last requisite,
that is, actual retirement under the Gratuity Plan.
During employment, the prospective retiree shall only
have an inchoate right over the benefits. There can be
no partial payment or enjoyment of the benefits, in
whatever guise, before actual retirement. xxx
PREMISES CONSIDERED, the instant request for
reconsideration of the disallowance amounting to
P11,626,414.25 has to be, as it is hereby, denied.[13]
In its Resolution of 1 August 2000, the COA also
denied DBPs second motion for reconsideration.
Citing the Courts ruling in Conte v. COA,[14] the COA
concluded that the SLP was actually a supplementary
retirement benefit in the guise of financial assistance,
thus:
At any rate, the Special Loan Program is not just an
ordinary and regular transaction of the Gratuity Plan
Fund, as the Bank innocently represents. xxx It is a
systematic investment mix conveniently implemented
in a special loan program with the least participation
of the beneficiaries, by merely filing an application and
then wait for the distribution of net earnings. The real
objective, of course, is to give financial assistance to
augment the value of the gratuity benefits, and this
has the same effect as the proscribed supplementary
pension/retirement plan under Section 28 (b) of
C(ommonwealth) A(ct) 186.
This Commission may now draw authority from the
case of Conte, et al. v. Commission on Audit (264
SCRA 19 [1996]) where the Supreme Court declared
that financial assistance granted to retiring employees
constitute supplementary retirement or pension
benefits. It was there stated:
xxx Said Sec. 28 (b) as amended by R.A. 4968 in no
uncertain terms bars the creation of any insurance or
retirement plan other than the GSIS for government
officers and employees, in order to prevent the undue
and iniquitous proliferation of such plans. It is beyond
cavil that Res. 56 contravenes the said provision of
law and is therefore, invalid, void and of no effect. To
ignore this and rule otherwise would be tantamount to
permitting every other government office or agency to
put up its own supplementary retirement benefit plan
under the guise of such financial assistance.[15]
Hence, the instant petition filed by DBP.
The Issues
The DBP invokes justice and equity on behalf of its
employees because of prevailing economic
conditions. The DBP reiterates that the income of the
Fund should be treated and recorded as separate
from the income of DBP itself, and charges that COA
committed grave abuse of discretion:
1. IN CONCLUDING THAT THE ADOPTION OF THE
SPECIAL LOAN PROGRAM CONSTITUTES A
CIRCUMVENTION OF PHILIPPINE RETIREMENT
LAWS;
2. IN CONCLUDING THAT THE SPECIAL LOAN
PROGRAM IS GROSSLY DISADVANTAGEOUS TO
THE GOVERNMENT;
3. IN CONCLUDING THAT THE SPECIAL LOAN
PROGRAM CONSTITUTES A SUPPLEMENTARY
RETIREMENT BENEFIT.[16]
The Office of the Solicitor General (OSG), arguing on
behalf of the COA, questions the standing of the DBP
to file the instant petition. The OSG claims that the
trustees of the Fund or the DBP employees
themselves should pursue this certiorari proceeding
since they would be the ones to return the dividends
and not DBP.
The central issues for resolution are: (1) whether DBP
has the requisite standing to file the instant petition for
certiorari; (2) whether the income of the Fund is
income of DBP; and (3) whether the distribution of
dividends under the SLP is valid.
The Ruling of the Court
The petition is partly meritorious.
The standing of DBP to file this petition for certiorari
As DBP correctly argued, the COA en banc implicitly
recognized DBPs standing when it ruled on DBPs
request for reconsideration from AOM No. 93-2 and
motion for reconsideration from the Decision of 6
October 1998. The supposed lack of standing of the
DBP was not even an issue in the COA Decision or in
the Resolution of 1 August 2000.
The OSG nevertheless contends that the DBP cannot
question the decisions of the COA en banc since DBP
is a government instrumentality. Citing Section 2,
Article IX-D of the Constitution,[17] the OSG argued
that:
Petitioner may ask the lifting of the disallowance by
COA, since COA had not yet made a definitive and
final ruling on the matter in issue. But after COA
denied with finality the motion for reconsideration of
petitioner, petitioner, being a government
instrumentality, should accept COAs ruling and leave
the matter of questioning COAs decision with the
concerned investor-members.[18]
These arguments do not persuade us.
Section 2, Article IX-D of the Constitution does not bar
government instrumentalities from questioning
decisions of the COA. Government agencies and
government-owned and controlled corporations have
long resorted to petitions for certiorari to question
rulings of the COA.[19] These government entities
filed their petitions with this Court pursuant to Section
7, Article IX of the Constitution, which mandates that
aggrieved parties may bring decisions of the COA to
the Court on certiorari.[20] Likewise, the Government
Auditing Code expressly provides that a government
agency aggrieved by a COA decision, order or ruling
may raise the controversy to the Supreme Court on
certiorari in the manner provided by law and the Rules
of Court.[21] Rule 64 of the Rules of Court now
embodies this procedure, to wit:
SEC 2. Mode of review. A judgment or final order or
resolution of the Commission on Elections and the
Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorari
under Rule 65, except as hereinafter provided.

The novel theory advanced by the OSG would
necessarily require persons not parties to the present
case the DBP employees who are members of the
Plan or the trustees of the Fund to avail of certiorari
under Rule 65. The petition for certiorari under Rule
65, however, is not available to any person who feels
injured by the decision of a tribunal, board or officer
exercising judicial or quasi-judicial functions. The
person aggrieved under Section 1 of Rule 65 who can
avail of the special civil action of certiorari pertains
only to one who was a party in the proceedings before
the court a quo,[22] or in this case, before the COA.
To hold otherwise would open the courts to numerous
and endless litigations.[23] Since DBP was the sole
party in the proceedings before the COA, DBP is the
proper party to avail of the remedy of certiorari.
The real party in interest who stands to benefit or
suffer from the judgment in the suit must prosecute or
defend an action.[24] We have held that interest
means material interest, an interest in issue that the
decision will affect, as distinguished from mere
interest in the question involved, or a mere incidental
interest.[25]
As a party to the Agreement and a trustor of the Fund,
DBP has a material interest in the implementation of
the Agreement, and in the operation of the Gratuity
Plan and the Fund as prescribed in the Agreement.
The DBP also possesses a real interest in upholding
the legitimacy of the policies and programs approved
by its Board of Directors for the benefit of DBP
employees. This includes the SLP and its
implementing rules, which the DBP Board of Directors
confirmed.
The income of the Gratuity Plan Fund
The COA alleges that DBP is the actual owner of the
Fund and its income, on the following grounds: (1)
DBP made the contributions to the Fund; (2) the
trustees of the Fund are merely administrators; and
(3) DBP employees only have an inchoate right to the
Fund.
The DBP counters that the Fund is the subject of a
trust, and that the Agreement transferred legal title
over the Fund to the trustees. The income of the Fund
does not accrue to DBP. Thus, such income should
not be recorded in DBPs books of account.[26]
A trust is a fiduciary relationship with respect to
property which involves the existence of equitable
duties imposed upon the holder of the title to the
property to deal with it for the benefit of another.[27] A
trust is either express or implied. Express trusts are
those which the direct and positive acts of the parties
create, by some writing or deed, or will, or by words
evincing an intention to create a trust.[28]
In the present case, the DBP Board of Governors
(now Board of Directors) Resolution No. 794 and the
Agreement executed by former DBP Chairman Rafael
Sison and the trustees of the Plan created an express
trust, specifically, an employees trust. An employees
trust is a trust maintained by an employer to provide
retirement, pension or other benefits to its
employees.[29] It is a separate taxable entity[30]
established for the exclusive benefit of the
employees.[31]
Resolution No. 794 shows that DBP intended to
establish a trust fund to cover the retirement benefits
of certain employees under Republic Act No. 1616[32]
(RA 1616). The principal and income of the Fund
would be separate and distinct from the funds of DBP.
We quote the salient portions of Resolution No. 794,
as follows:
2. Trust Agreement designed for in-house trustees of
three (3) to be appointed by the Board of Governors
and vested with control and administration of the
funds appropriated annually by the Board to be
invested in selective investments so that the income
and principal of said contributions would be sufficient
to meet the required payments of benefits as officials
and employees of the Bank retire under the Gratuity
Plan; xxx
The proposed funding of the gratuity plan has decided
advantages on the part of the Bank over the present
procedure, where the Bank provides payment only
when an employee retires or on pay as you go basis:
1. It is a definite written program, permanent and
continuing whereby the Bank provides contributions to
a separate trust fund, which shall be exclusively used
to meet its liabilities to retiring officials and
employees; and
2. Since the gratuity plan will be tax qualified under
the National Internal Revenue Code and RA 4917, the
Banks periodic contributions thereto shall be
deductible for tax purposes and the earnings
therefrom tax free.[33] (Emphasis supplied)
In a trust, one person has an equitable ownership in
the property while another person owns the legal title
to such property, the equitable ownership of the
former entitling him to the performance of certain
duties and the exercise of certain powers by the
latter.[34] A person who establishes a trust is the
trustor. One in whom confidence is reposed as
regards property for the benefit of another is the
trustee. The person for whose benefit the trust is
created is the beneficiary.[35]
In the present case, DBP, as the trustor, vested in the
trustees of the Fund legal title over the Fund as well
as control over the investment of the money and
assets of the Fund. The powers and duties granted to
the trustees of the Fund under the Agreement were
plainly more than just administrative, to wit:
1. The BANK hereby vests the control and
administration of the Fund in the TRUSTEES for the
accomplishment of the purposes for which said Fund
is intended in defraying the benefits of the PLAN in
accordance with its provisions, and the TRUSTEES
hereby accept the trust xxx
2. The TRUSTEES shall receive and hold legal title to
the money and/or property comprising the Fund, and
shall hold the same in trust for its beneficiaries, in
accordance with, and for the uses and purposes
stated in the provisions of the PLAN.
3. Without in any sense limiting the general powers of
management and administration given to TRUSTEES
by our laws and as supplementary thereto, the
TRUSTEES shall manage, administer, and maintain
the Fund with full power and authority:
xxx
b. To invest and reinvest at any time all or any part of
the Fund in any real estate (situated within the
Philippines), housing project, stocks, bonds,
mortgages, notes, other securities or property which
the said TRUSTEES may deem safe and proper, and
to collect and receive all income and profits existing
therefrom;
c. To keep and maintain accurate books of account
and/or records of the Fund xxx.
d. To pay all costs, expenses, and charges incurred in
connection with the administration, preservation,
maintenance and protection of the Fund xxx to
employ or appoint such agents or employees xxx.
e. To promulgate, from time to time, such rules not
inconsistent with the conditions of this Agreement xxx.
f. To do all acts which, in their judgment, are needful
or desirable for the proper and advantageous control
and management of the Fund xxx.[36] (Emphasis
supplied)
Clearly, the trustees received and collected any
income and profit derived from the Fund, and they
maintained separate books of account for this
purpose. The principal and income of the Fund will not
revert to DBP even if the trust is subsequently
modified or terminated. The Agreement states that the
principal and income must be used to satisfy all of the
liabilities to the beneficiary officials and employees
under the Gratuity Plan, as follows:
5. The BANK reserves the right at any time and from
time to time (1) to modify or amend in whole or in part
by written directions to the TRUSTEES, any and all of
the provisions of this Trust Agreement, or (2) to
terminate this Trust Agreement upon thirty (30) days
prior notice in writing to the TRUSTEES; provided,
however, that no modification or amendment which
affects the rights, duties, or responsibilities of the
TRUSTEES may be made without the TRUSTEES
consent; and provided, that such termination,
modification, or amendment prior to the satisfaction of
all liabilities with respect to eligible employees and
their beneficiaries, does not permit any part of the
corpus or income of the Fund to be used for, or
diverted to, purposes other than for the exclusive
benefit of eligible employees and workers as provided
for in the PLAN. In the event of termination of this
Trust Agreement, all cash, securities, and other
property then constituting the Fund less any amounts
constituting accrued benefits to the eligible
employees, charges and expenses payable from the
Fund, shall be paid over or delivered by the
TRUSTEES to the members in proportion to their
accrued benefits.[37] (Emphasis supplied)
The resumption of the SLP did not eliminate the trust
or terminate the transfer of legal title to the Funds
trustees. The records show that the Funds Board of
Trustees approved the SLP upon the request of the
DBP Career Officials Association.[38] The DBP Board
of Directors only confirmed the approval of the SLP by
the Funds trustees.
The beneficiaries or cestui que trust of the Fund are
the DBP officials and employees who will retire under
Commonwealth Act No. 186[39] (CA 186), as
amended by RA 1616. RA 1616 requires the
employer agency or government instrumentality to
pay for the retirement gratuity of its employees who
rendered service for the required number of years.[40]
The Government Service Insurance System Act of
1997[41] still allows retirement under RA 1616 for
certain employees.
As COA correctly observed, the right of the
employees to claim their gratuities from the Fund is
still inchoate. RA 1616 does not allow employees to
receive their gratuities until they retire. However, this
does not invalidate the trust created by DBP or the
concomitant transfer of legal title to the trustees. As
far back as in Government v. Abadilla,[42] the Court
held that it is not always necessary that the cestui que
trust should be named, or even be in esse at the time
the trust is created in his favor. It is enough that the
beneficiaries are sufficiently certain or identifiable.[43]
In this case, the GSIS Act of 1997 extended the
option to retire under RA 1616 only to employees who
had entered government service before 1 June
1977.[44] The DBP employees who were in the
service before this date are easily identifiable. As of
the time DBP filed the instant petition, DBP estimated
that 530 of its employees could still retire under RA
1616. At least 60 DBP employees had already
received their gratuities under the Fund.[45]
The Agreement indisputably transferred legal title over
the income and properties of the Fund to the Funds
trustees. Thus, COAs directive to record the income
of the Fund in DBPs books of account as the
miscellaneous income of DBP constitutes grave
abuse of discretion. The income of the Fund does not
form part of the revenues or profits of DBP, and DBP
may not use such income for its own benefit. The
principal and income of the Fund together constitute
the res or subject matter of the trust. The Agreement
established the Fund precisely so that it would
eventually be sufficient to pay for the retirement
benefits of DBP employees under RA 1616 without
additional outlay from DBP. COA itself acknowledged
the authority of DBP to set up the Fund. However,
COAs subsequent directive would divest the Fund of
income, and defeat the purpose for the Funds
creation.
The validity of the Special Loan Program
and the disallowance of P11,626,414.25
In disallowing the P11,626,414.25 distributed as
dividends under the SLP, the COA relied primarily on
Republic Act No. 4968 (RA 4968) which took effect on
17 June 1967. RA 4968 added the following
paragraph to Section 28 of CA 186, thus:
(b) Hereafter no insurance or retirement plan for
officers or employees shall be created by any
employer. All supplementary retirement or pension
plans heretofore in force in any government office,
agency, or instrumentality or corporation owned or
controlled by the government, are hereby declared
inoperative or abolished: Provided, That the rights of
those who are already eligible to retire thereunder
shall not be affected.
Even assuming, however, that the SLP constitutes a
supplementary retirement plan, RA 4968 does not
apply to the case at bar. The DBP Charter, which took
effect on 14 February 1986, expressly authorizes
supplementary retirement plans adopted by and
effective in DBP, thus:
SEC. 34. Separation Benefits. All those who shall
retire from the service or are separated therefrom on
account of the reorganization of the Bank under the
provisions of this Charter shall be entitled to all
gratuities and benefits provided for under existing
laws and/or supplementary retirement plans adopted
by and effective in the Bank: Provided, that any
separation benefits and incentives which may be
granted by the Bank subsequent to June 1, 1986,
which may be in addition to those provided under
existing laws and previous retirement programs of the
Bank prior to the said date, for those personnel
referred to in this section shall be funded by the
National Government; Provided, further, that, any
supplementary retirement plan adopted by the Bank
after the effectivity of this Chapter shall require the
prior approval of the Minister of Finance.
xxx.
SEC. 37. Repealing Clause. All acts, executive
orders, administrative orders, proclamations, rules
and regulations or parts thereof inconsistent with any
of the provisions of this charter are hereby repealed or
modified accordingly.[46] (Emphasis supplied)
Being a special and later law, the DBP Charter[47]
prevails over RA 4968. The DBP originally adopted
the SLP in 1983. The Court cannot strike down the
SLP now based on RA 4968 in view of the
subsequent DBP Charter authorizing the SLP.
Nevertheless, the Court upholds the COAs
disallowance of the P11,626,414.25 in dividends
distributed under the SLP.
According to DBP Board Resolution No. 0036 dated
25 January 1991, the SLP allows a prospective retiree
to utilize in the form of a loan, a portion of their
outstanding equity in the Gratuity Plan Fund and to
invest [the] proceeds in a profitable investment or
undertaking.[48] The basis of the loanable amount
was an employees gratuity fund credit,[49] that is to
say, what an employee would receive if he retired at
the time he availed of the loan.
In his letter dated 26 October 1983 proposing the
confirmation of the SLP, then DBP Chairman Cesar B.
Zalamea stated that:
The primary objective of this proposal therefore is to
counteract the unavoidable decrease in the value of
the said retirement benefits through the following
scheme:
I. To allow a prospective retiree the option to utilize in
the form of a loan, a portion of his standing equity in
the Gratuity Fund and to invest it in a profitable
investment or undertaking. The income or
appreciation in value will be for his own account and
should provide him the desired hedge against inflation
or erosion in the value of the peso. This is being
proposed since Philippine retirement laws and the
Gratuity Plan do not allow partial payment of
retirement benefits, even the portion already earned,
ahead of actual retirement.[50] (Emphasis supplied)
As Chairman Zalamea himself noted, neither the
Gratuity Plan nor our laws on retirement allow the
partial payment of retirement benefits ahead of actual
retirement. It appears that DBP sought to circumvent
these restrictions through the SLP, which released a
portion of an employees retirement benefits to him in
the form of a loan. Certainly, the DBP did this for
laudable reasons, to address the concerns of DBP
employees on the devaluation of their retirement
benefits. The remaining question is whether RA 1616
and the Gratuity Plan allow this scheme.
We rule that it is not allowed.
The right to retirement benefits accrues only upon
certain prerequisites. First, the conditions imposed by
the applicable law in this case, RA 1616 must be
fulfilled.[51] Second, there must be actual
retirement.[52] Retirement means there is a bilateral
act of the parties, a voluntary agreement between the
employer and the employees whereby the latter after
reaching a certain age agrees and/or consents to
severe his employment with the former.[53]
Severance of employment is a condition sine qua non
for the release of retirement benefits. Retirement
benefits are not meant to recompense employees
who are still in the employ of the government. That is
the function of salaries and other emoluments.[54]
Retirement benefits are in the nature of a reward
granted by the State to a government employee who
has given the best years of his life to the service of his
country.[55]
The Gratuity Plan likewise provides that the gratuity
benefit of a qualified DBP employee shall only be
released upon retirement under th(e) Plan.[56] As the
COA correctly pointed out, this means that retirement
benefits can only be demanded and enjoyed when the
employee shall have met the last requisite, that is,
actual retirement under the Gratuity Plan.[57]
There was thus no basis for the loans granted to DBP
employees under the SLP. The rights of the recipient
DBP employees to their retirement gratuities were still
inchoate, if not a mere expectancy, when they availed
of the SLP. No portion of their retirement benefits
could be considered as actually earned or outstanding
before retirement. Prior to retirement, an employee
who has served the requisite number of years is only
eligible for, but not yet entitled to, retirement benefits.
The DBP contends that the SLP is merely a normal
loan transaction, akin to the loans granted by the
GSIS, SSS and the DBP Provident Fund.
The records show otherwise.
In a loan transaction or mutuum, the borrower or
debtor acquires ownership of the amount
borrowed.[58] As the owner, the debtor is then free to
dispose of or to utilize the sum he loaned,[59] subject
to the condition that he should later return the amount
with the stipulated interest to the creditor.[60]
In contrast, the amount borrowed by a qualified
employee under the SLP was not even released to
him. The implementing rules of the SLP state that:
The loan shall be available strictly for the purpose of
investment in the following investment instruments:
a. 182 or 364-day term Time deposits with DBP
b. 182 or 364-day T-bills /CB Bills

c. 182 or 364-day term DBP Blue Chip Fund
The investment shall be registered in the name of
DBP-TSD in trust for availee-investor for his sole risk
and account. Choice of eligible terms shall be at the
option of availee-investor. Investments shall be
commingled by TSD and Participation Certificates
shall be issued to each availee-investor.
xxx
IV. LOANABLE TERMS
xxx
e. Allowable Investment Instruments Time Deposit
DBP T-Bills/CB Bills and DBP Blue Chip Fund. TSD
shall purchase new securities and/or allocate existing
securities portfolio of GPF depending on liquidity
position of the Fund xxx.
xxx
g. Security The loan shall be secured by GS,
Certificate of Time Deposit and/or BCF Certificate of
Participation which shall be registered in the name of
DBP-TSD in trust for name of availee-investor and
shall be surrendered to the TSD for safekeeping.[61]
(Emphasis supplied)
In the present case, the Fund allowed the debtor-
employee to borrow a portion of his gratuity fund
credit solely for the purpose of investing it in certain
instruments specified by DBP. The debtor-employee
could not dispose of or utilize the loan in any other
way. These instruments were, incidentally, some of
the same securities where the Fund placed its
investments. At the same time the Fund obligated the
debtor-employee to assign immediately his loan to
DBP-TSD so that the amount could be commingled
with the loans of other employees. The DBP-TSD the
same department which handled and had custody of
the Funds accounts then purchased or re-allocated
existing securities in the portfolio of the Fund to
correspond to the employees loans.
Simply put, the amount ostensibly loaned from the
Fund stayed in the Fund, and remained under the
control and custody of the DBP-TSD. The debtor-
employee never had any control or custody over the
amount he supposedly borrowed. However, DBP-TSD
listed new or existing investments of the Fund
corresponding to the loan in the name of the debtor-
employee, so that the latter could collect the interest
earned from the investments.
In sum, the SLP enabled certain DBP employees to
utilize and even earn from their retirement gratuities
even before they retired. This constitutes a partial
release of their retirement benefits, which is contrary
to RA 1616 and the Gratuity Plan. As we have
discussed, the latter authorizes the release of
gratuities from the earnings and principal of the Fund
only upon retirement.
The Gratuity Plan will lose its tax-exempt status if the
retirement benefits are released prior to the retirement
of the employees. The trust funds of employees other
than those of private employers are qualified for
certain tax exemptions pursuant to Section 60(B)
formerly Section 53(b) of the National Internal
Revenue Code.[62] Section 60(B) provides:
Section 60. Imposition of Tax.
(A) Application of Tax. The tax imposed by this Title
upon individuals shall apply to the income of estates
or of any kind of property held in trust, including:
xxx
(B) Exception. The tax imposed by this Title shall not
apply to employees trust which forms part of a
pension, stock bonus or profit-sharing plan of an
employer for the benefit of some or all of his
employees (1) if contributions are made to the trust by
such employer, or employees, or both for the purpose
of distributing to such employees the earnings and
principal of the fund accumulated by the trust in
accordance with such plan, and (2) if under the trust
instrument it is impossible, at any time prior to the
satisfaction of all liabilities with respect to employees
under the trust, for any part of the corpus or income to
be (within the taxable year or thereafter) used for, or
diverted to, purposes other than for the exclusive
benefit of his employees: xxx (Emphasis supplied)
The Gratuity Plan provides that the gratuity benefits of
a qualified DBP employee shall be released only upon
retirement under th(e) Plan. If the earnings and
principal of the Fund are distributed to DBP
employees prior to their retirement, the Gratuity Plan
will no longer qualify for exemption under Section
60(B). To recall, DBP Resolution No. 794 creating the
Gratuity Plan expressly provides that since the
gratuity plan will be tax qualified under the National
Internal Revenue Code xxx, the Banks periodic
contributions thereto shall be deductible for tax
purposes and the earnings therefrom tax free. If DBP
insists that its employees may receive the
P11,626,414.25 dividends, the necessary
consequence will be the non-qualification of the
Gratuity Plan as a tax-exempt plan.

Finally, DBP invokes justice and equity on behalf of its

affected employees. Equity cannot supplant or
contravene the law.[63] Further, as evidenced by the
letter of former DBP Chairman Zalamea, the DBP
Board of Directors was well aware of the proscription
against the partial release of retirement benefits when
it confirmed the SLP. If DBP wants to enhance and
protect the value of xxx (the) gratuity benefits of its
employees, DBP must do so by investing the money
of the Fund in the proper and sound investments, and
not by circumventing restrictions imposed by law and
the Gratuity Plan itself.

We nevertheless urge the DBP and COA to provide

equitable terms and a sufficient period within which
the affected DBP employees may refund the
dividends they received under the SLP. Since most of
the DBP employees were eligible to retire within a few
years when they availed of the SLP, the refunds may
be deducted from their retirement benefits, at least for
those who have not received their retirement benefits.

WHEREFORE, COA Decision No. 98-403 dated 6

October 1998 and COA Resolution No. 2000-212
dated 1 August 2000 are AFFIRMED with
MODIFICATION. The income of the Gratuity Plan
Fund, held in trust for the benefit of DBP employees
eligible to retire under RA 1616, should not be
recorded in the books of account of DBP as the
income of the latter.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban,

Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., Azcuna, and Tinga, JJ., concur.