G.R. No. L-8321. March 26, 1956: BRAULIO QUIMSON, Plaintiff - Appellant vs.

ROMAN OZAETA, ET
AL., Defendants- Appellees

DECISION

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of Quezon City, dismissing Plaintiff’s
complaint for the recovery of accrued salaries, first taken to the Court of Appeals, and later certified to us
for the reason that said appeal involved only questions of law. The facts are simple and clear, and as
found by the trial court may be briefly stated as follows:

The Rural Progress Administration (later referred to as Administration) is a public corporation created
for the purpose of acquiring landed estates through purchase, expropriation or lease, and later sub-
letting or sub-leasing the same to tenants or occupants. The officials and employees of the Administration
may be considered as civil service employees embraced in the classified service. Sometime in 1947, one
Aurelio R. Peña, then comptroller of the Administration and performing duties of auditor in
representation of the Auditor General recommended to the Board of Directors of the Administration that
for purposes of economy municipal treasurers be appointed agent-collectors of the Administration, and
this recommendation was adopted by the Board of Director. Thereafter, Faustino Aguilar, then manager
of the Administration, prepared the appointment for the post of agent- collector on a part-time basis in
favor of Plaintiff - Appellant Braulio Quimson, with compensation of P720 per annum, the appointment to
take effect upon assumption of duty. At the time, Quimson was deputy provincial treasurer and municipal
treasurer of Caloocan, Rizal. Defendant - Appellee Roman Ozaeta who by reason of his office of Secretary
of Justice was acting as Chairman of the Board of Directors, signed the appointment and forwarded the
papers to the President through the Secretary of Finance for approval. Without waiting for the said
approval Quimson assumed his position on May 6, 1948 and rendered service as agent-collector of the
Administration until October 21, 1949, inclusive, when he was informed that because of the disapproval
of his appointment, his services were considered terminated. There were several objections to his
appointment, among them that of the Auditor General on the ground that since Quimson was deputy
provincial treasurer and municipal treasurer of Caloocan, his additional compensation as agent-collector
would contravene the Constitutional prohibition against double compensation. The Commissioner of Civil
Service said that he would offer no objection to the additional compensation of Quimson as agent-
collector provided it was authorized in a special provision exempting the case from the inhibition against
the payment of extra compensation in accordance with section 259 of the Revised Administrative Code.
In this connection, it may be stated that this section of the Administrative Code provides that in the
absence of special provision, no officer or employee in any branch of the Government service shall
receive additional compensation on account of the discharge of duties pertaining to another or to the
performance of public service of whatever nature. Faustino Aguilar as manager of the Administration
asked for the reconsideration of the ruling of the Auditor General, alleging that the appointment of the
Plaintiff was for reasons of economy and efficiency, but the Auditor General denied the request stating
that reasons of economy and efficiency are not valid grounds for evading the constitutional prohibition
against additional compensation in the absence of a law specifically authorizing such compensation. So,
the services of Quimson as agent-collector of the Administration were terminated. But R. Gonzales Lloret,
then manager of the Administration on October 18, 1949, inquired from the auditor of the Administration
whether Quimson could be paid for the period of actual service rendered by him from May 10, 1948, and
the said auditor gave the opinion that it could not be done for the reason that in his opinion the
appointment extended to Quimson was clearly illegal and the Administration may not be obliged to pay
him for the services rendered since it was a violation of section 3, Article XII, of the Constitution
prohibiting double compensation. At the same time he expressed the opinion that under section 691 of
the Revised Administrative Code the appointing official who made the illegal appointment should be
made liable for the payment of salary of the appointee, and consequently, Plaintiff should claim his salary
for services rendered against said appointing officer. It is highly possible that this opinion was what
induced and prompted Quimson to file the present case against Roman Ozaeta who, as Chairman of the
Board, signed his appointment, and the members of the said Board, namely: Faustino Aguilar, Vicente
Fragante, Roman Fernandez and Pedro Magsalin. The action was initiated in the Justice of the Peace Court
which dismissed the complaint. On appeal to the Court of First Instance of Quezon City, as already stated,
the complaint was also dismissed.

For purposes of reference we are reproducing section 691 of the Revised Administrative Code, to wit:

“SEC. 691. Payment of person employed contrary to law. — Liability of chief of office. — No person
employed in the classified service contrary to law or in violation of the civil service rules shall be entitled
to receive pay from the Government; but the chief of the bureau or office responsible for such unlawful
employment shall be personally liable for the pay that would have accrued had the employment been
lawful, and the disbursing officer shall make payment to the employee of such amount from the salary of
the officers so liable.”

In our opinion, the present appeal can be resolved without much difficulty. Section 691 of the
Administrative Code above reproduced refers and applies to unlawful employment and not to unlawful
compensation. The appointment or employment of Plaintiff - Appellant Quimson as agent-collector was
not in itself unlawful because there is no incompatibility between said appointment and his employment
as deputy provincial treasurer and municipal treasurer. In fact, he was appointed agent-collector by
reason of his office, being a municipal treasurer. There is no legal objection to a government official
occupying two government offices and performing the functions of both as long as there is no
incompatibility. Clerks of court are sometimes appointed or designated as provincial sheriffs. Municipal
Treasurers like Plaintiff are often appointed and designated as deputy provincial treasurer. The
Department Secretaries are often designated to act as Chairman or members of Board of Directors of
government corporations. The objection or prohibition refers to double compensation and not to double
appointments and performance of functions of more than one office.

According to law, under certain circumstances, the President may authorize double compensation in
some cases, such as government officials acting as members with compensation in government
examining boards like the bar examinations, or department secretaries acting as members of Board of
Directors of government corporations, and in such cases the prohibition against double compensation is
not observed. This undoubtedly, was the reason why the appointment of Quimson had to be coursed
through different offices like the Department of Finance, the Civil Service Commission, and the Office of
the Auditor General to the President for approval. If the President approves the double compensation,
well and good. The appointee whose appointment may then be regarded as valid from the beginning
could receive extra compensation. If it is disapproved, then the appointment will have to be withdrawn or
cancelled, unless of course, the appointee was willing to serve without compensation, in which case there
could be no valid objection. This is another proof that the appointment of Quimson was not illegal or
unlawful. It was only the double compensation that was subject to objection. The trouble was that
Plaintiff herein assumed office without waiting for the result of the action to be taken upon his
appointment and compensation by the President and the different offices which the appointment had to
go through.

Furthermore, Quimson would appear to have assumed office without notifying the official who appointed
him, namely, Roman Ozaeta. Plaintiff, therefore, took the risk or hazard of not being paid for any service
that he may render in the meantime. His counsel now contends that the appointing official should have
known that double compensation was prohibited by law and therefore he should not have appointed
Quimson as agent-collector. That is seemingly a plausible stand. But it should be borne in mind that there
are exceptions to the prohibition; that the very comptroller of the Administration, representing the
Auditor General, recommended the appointment of municipal treasurers, like the Plaintiff , as agent-
collectors, and so Defendant Ozaeta and the other members of the Board of Directors may have believed
that the Chief Executive might approve Plaintiff’s appointment. Besides, it may also be said that Quimson
himself, a Deputy Provincial Treasurer and Municipal Treasurer, a financial officer expected to be tersed
in government disbursements and payments of salaries and compensation should have also known and
undoubtedly he knew about that prohibition against double compensation. He should have known that
his appointment had to go over or through several obstacles and hazards, but he took the risk and began
serving as agent-collector before his appointment was approved. We are afraid that he has no one to
blame but himself.

Finding no reversible error in the decision appealed from, the same is hereby affirmed, with costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia,
JJ. , concur.
VICENTE D. TRINIDAD, Ex-Mayor of Iguig, Cagayan, complainant, vs. JUDGE GABRIEL O. VALLE, JR.,
Court of First Instance of Ilocos Norte, Laoag City Branch II, respondent.

R E S O L U T I O N:

AQUINO, J.:

Vicente D. Trinidad, former mayor of Iguig, Cagayan, in his affidavit of August 6, 1979, charged Judge
Gabriel O. Valle, Jr. of the Court of First Instance of Ilocos Norte (a native of Baggao, Cagayan) with having
delivered a speech at a conference of barangay captains in the house of Mayor Proceso Maramag at Iguig,
advising them to support the leadership of Maramag and Minister of Defense Juan Ponce Enrile.

The charge was supported by the affidavits of Caridad D. Trinidad, Pablo Calagui, Peregrino Abana,
Santos Mina and Felipe Banatao.

Judge Valle happened to be in Iguig at that time because he was rendering rural service, He admitted that
he delivered a speech in Ilocano but he denied that he favored Maramag.

According to his version, he told the barangay captains that because former Mayor Trinidad was allegedly
his cousin and Maramag had been his colleague in the fiscal's office, he had no comment to make, He said
that he enjoined the barangay captains to "follow the doctrine of the New Society" and to "vote honestly."

We find that it was improper or indecorous for Judge Valle to have taken part in the political meeting held
in Maramag's house. He should have realized that his mere presence there would be construed as an
endorsement of Maramag as against complainant Trinidad and that such behavior would render him
vulnerable to the charge of electioneering.

The Constitution provides that "no officer or employee in the Civil Service, including members of the
armed forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote" [Sec. J, Art. XII(B)].

That prohibition is repeated in section 36(b)(26) of Presidential Decree No. 807, the Civil Service Decree
of the Philippines. As rightly observed by the complainant, a sense of delicadeza should have deterred
Judge Valle from attending that political meeting. Notwithstanding respondent's disclaimer, the record
contains strong indications that he was engaged in partisan political activity when he attended the
political meeting in the house of Mayor Maramag.

WHEREFORE, a fine equivalent to his compensation for seven days is imposed on respondent judge.

A copy of this resolution should be attached to his personal record.

 G.R. No. 178678: DR. HANS CHRISTIAN M. SEERES, Petitioner vs COMMISSION ON ELECTIONS and
MELQUIADES A. ROBLES, Respondents.

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO

MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,
and BERSAMIN, JJ.

Promulgated:

April 16, 2009

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The Case

Before us is a Petition for Certiorari[1] under Rule 65 with a prayer for a temporary restraining order
and/or preliminary injunction to nullify and enjoin the implementation of the Resolution [2] dated July
19, 2007 of the Commission on Elections (COMELEC), which declared respondent Melquiades Robles
(Robles) as the President of BUHAY HAYAAN YUMABONG (BUHAY).

The Undisputed Facts

In 1999, private respondent Robles was elected president and chairperson of BUHAY, a party-list group
duly registered with COMELEC.

[3] The constitution of BUHAY provides for a three-year term for all its party officers, without re-election.
[4] BUHAY participated in the 2001 and 2004 elections, with Robles as its president. All the required
Manifestations of Desire to Participate in the said electoral exercises, including the Certificates of
Nomination of representatives, carried the signature of Robles as president of BUHAY. [5] On January 26,
2007, in connection with the May 2007 elections, BUHAY again filed a Manifestation of its Desire to
Participate in the Party-List System of Representation. [6] As in the past two elections, the manifestation
to participate bore the signature of Robles as BUHAY president.

On March 29, 2007, Robles signed and filed Certificate of Nomination of BUHAYs nominees for the 2007
elections containing the following names: (i) Rene M. Velarde, (ii) Ma. Carissa Coscolluela, (iii) William
Irwin C. Tieng, (iv) Melchor R. Monsod, and (v) Teresita B. Villarama. Earlier, however, or on March 27,
2007, petitioner Hans Christian Seeres, holding himself up as acting president and secretary-general of
BUHAY, also filed a Certificate of Nomination with the COMELEC, nominating: (i) himself, (ii)
Hermenegildo C. Dumlao, (iii) Antonio R. Bautista, (iv) Victor Pablo C. Trinidad, and (v) Eduardo C.
Solangon, Jr. [7]

Consequently, on April 17, 2007, Seeres filed with the COMELEC a Petition to Deny Due Course to
Certificates of Nomination.[8] In it, petitioner Seeres alleged that he was the acting president and
secretary-general of BUHAY, having assumed that position since August 17, 2004 when Robles vacated
the position. Pushing the point, Seeres would claim that the nominations made by Robles were, for lack of
authority, null and void owing to the expiration of the latters term as party president. Furthermore,
Seeres asserted that Robles was, under the Constitution,[9] disqualified from being an officer of any
political party, the latter being the Acting Administrator of the Light Railway Transport Authority (LRTA),
a government-controlled corporation. Robles, so Seeres would charge, was into a partisan political
activity which civil service members, like the former, were enjoined from engaging in.

On May 10, 2007, the National Council of BUHAY adopted a resolution [10] expelling Seeres as party
member for his act of submitting a Certificate of Nomination for the party. The resolution reads in part:

WHEREAS, Hans Christian M. Seeres, without authority from the National Council, caused the filing of his
Certificate of Nomination with the Comelec last 27 March 2007.

WHEREAS, Hans Christian M. Seeres, again without authority from the National Council, listed in his
Certificate of Nomination names of persons who are not even members of the Buhay party.

WHEREAS, Hans Christian M. Seeres, knowing fully well that the National Council had previously
approved the following as its official nominees, to wit x x x to the 2007 Party-List elections; and that Mr.
Melquiades A. Robles was authorized to sign and submit the partys Certificate of Nomination with the
Comelec; and, with evident premeditation to put the party to public ridicule and with scheming intention
to create confusion, still proceeded with the filing of his unauthorized certificate of nomination even
nomination persons who are not members of Buhay.

WHEREAS, Hans Christian M. Seeres, in view of the foregoing, underwent Party Discipline process
pursuant to Article VII of the Constitution and By-Laws of the Party.

xxxx
WHEREAS, after a careful examination of the [evidence] on his case, the National Council found Hans
Christian M. Seeres to have committed acts in violation of the constitution and by-laws of the party and
decided to expel him as a member of the party.

NOW THEREFORE, be it RESOLVED as it is hereby RESOLVED that the National Council has decided to
expel Hans M. Seeres as a member of the party effective close of business hour of 10 May 2007.

BE IT RESOLVED FURTHER, that all rights and privileges pertaining to the membership of Hans M. Seeres
with the party are consequently cancelled.

BE IT RESOLVED FURTHER, that the President and Chairman of the National Council of Buhay, Mr.
Melquiades A. Robles, is hereby authorized to cause the necessary filing of whatever documents/letters
before the House of Representatives and/or to any other entity/agency/person to remove/drop Mr.
Seeres name in the roll of members in the said lower house. [11]

Later developments saw Robles filing a petition praying for the recognition of Jose D. Villanueva as the
new representative of BUHAY in the House of Representatives for the remaining term until June 30, 2007.
[12] Attached to the petition was a copy of the expelling resolution adverted to. Additionally, Robles also
filed on the same day an Urgent Motion to Declare Null and Void the Certificate of Nomination and
Certificates of Acceptance filed by Hans Christian M. Seeres, Hermenegildo Dumlao, Antonio R. Bautista,
Victor Pablo Trinidad and Eduardo Solangon, Jr. [13]

On July 9 and July 18, 2007, respectively, the COMELEC issued two resolutions proclaiming BUHAY as a
winning party-list organization for the May 2007 elections entitled to three (3) House seats. [14]

This was followed by the issuance on July 19, 2007 by the en banc COMELEC of Resolution E.M. No. 07-
043 recognizing and declaring Robles as the president of BUHAY and, as such, was the one duly
authorized to sign documents in behalf of the party particularly the Manifestation to participate in the
party-list system of representation and the Certification of Nomination of its nominees. [15] Explaining
its action, COMELEC stated that since no party election was held to replace Robles as party president,
then he was holding the position in a hold-over capacity. [16]

The COMELEC disposed of the partisan political activity issue with the terse observation that Seeres
arguments on the applicability to Robles of the prohibition on partisan political activity were
unconvincing.

[17] The dispositive portion of the COMELEC Resolution reads:

WHEREFORE, premises considered, this Commission (En Banc) hereby recognizes Melquiades A. Robles
as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and to act for and in its behalf
pursuant to its Constitution and By-Laws.

SO ORDERED. [18]

On July 20, 2007, the first three (3) listed nominees of BUHAY for the May 2007 elections, as per the
Certificate of Nomination filed by Robles, namely Rene M. Velarde, Ma. Carissa Coscolluela, and William
Irwin C. Tieng, took their oaths of office as BUHAY party-list representatives in the current Congress. [19]

Accordingly, on September 3, 2007, the COMELEC, sitting as National Board of Canvassers, issued a
Certificate of Proclamation to BUHAY and its nominees as representatives to the House of
Representatives.[20]

Aggrieved, petitioner filed the instant petition.

The Issue

Whether or not the COMELEC acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing its challenged Resolution dated June 19, 2007, which
declared respondent Robles as the duly authorized representative of BUHAY, and there is no appeal or
any other plain, speedy or adequate remedy in the ordinary course of law except the instant petition.

Our Ruling

The petition should be dismissed for lack of merit.

Petition for Certiorari Is an Improper Remedy

A crucial matter in this recourse is whether the petition for certiorari filed by

Seeres is the proper remedy.

A special civil action for certiorari may be availed of when the tribunal, board, or officer exercising
judicial or quasi-judicial functions has acted without or in excess of jurisdiction and there is no appeal or
any plain, speedy, and adequate remedy in the ordinary course of law for the purpose of annulling the
proceeding. [21] It is the proper remedy to question any final order, ruling and decision of the COMELEC
rendered in the exercise of its adjudicatory or quasi-judicial powers.[22] For
certiorari to prosper, however, there must be a showing that the COMELEC acted with grave abuse of
discretion and that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of
law.

In the present case, a plain, speedy and adequate remedy in the ordinary course of law was available to
Seeres. The 1987 Constitution cannot be more explicit in this regard. Its Article VI, Section 17 states:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns and qualifications of their respective
Members. x x x

This constitutional provision is reiterated in Rule 14 of the 1991 Revised Rules of the Electoral Tribunal
of the House of Representatives, to wit:

RULE 14. Jurisdiction. The Tribunal shall be the sole judge of all contests relating to the election, returns
and qualifications of the Members of the House of Representatives.

In Lazatin v. House Electoral Tribunal , the Court elucidated on the import of the word sole in Art. VI, Sec.
17 of the Constitution, thus:

The use of the word sole emphasizes the exclusive character of the jurisdiction conferred. The exercise of
the power by the Electoral Commission under the 1935 Constitution has been described as intended to
be as complete and unimpaired as if it had remained originally in the legislature. Earlier, this grant of
power to the legislature was characterized by Justice Malcolm as full, clear and complete. Under the
amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it
remained as full, clear and complete as that previously granted the legislature and the Electoral
Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the
1987 Constitution.[23]

Then came Rasul v. COMELEC and Aquino-Oreta , in which the Court again stressed that the word sole in
Sec. 17, Art. VI of the 1987 Constitution and Sec. 250 of the Omnibus Election Code underscore the
exclusivity of the Tribunals jurisdiction over election contests relating to its members. [24]

The House of Representatives Electoral Tribunals (HRETs) sole and exclusive jurisdiction over contests
relative to the election, returns and qualifications of the members of the House of Representatives begins
only after a candidate has become a member of the House of Representatives. [25] Thus, once a winning
candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, COMELECs jurisdiction over elections relating to the election, returns, and qualifications
ends, and the HRETs own jurisdiction begins.

It is undisputed that the COMELEC, sitting as National Board of Canvassers, proclaimed BUHAY as a
winning party-list organization for the May 14, 2007 elections, entitled to three (3) seats in the House of
Representatives.[27] The proclamation came in the form of two Resolutions dated July 9, 2007 and July
18, 2007,[28] respectively. Said resolutions are official proclamations of COMELEC considering it is
BUHAY that ran for election as party-list organization and not the BUHAY nominees.

The following day, on July 19, 2007, the COMELEC issued the assailed resolution declaring Melquiades A.
Robles as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and to act in its behalf
pursuant to its Constitution and By-Laws. COMELEC affirmed that his Certificate of Nomination was a
valid one as it ruled that Robles is the President of Buhay Party-List and therefore duly authorized to sign
documents in behalf of the party particularly the Manifestation to participate in the pary-list system of
representation and the Certificate of Nomination of its nominees. [29] The September 3, 2007
proclamation merely confirmed the challenged July 19, 2007 Resolution. The July 19, 2007 Resolution
coupled with the July 9, 2007 and July 18, 2007 proclamations vested the Robles nominees the right to
represent BUHAY as its sectoral representatives.

Consequently, the first three (3) nominees in the Certificate of Nomination submitted by Robles then took
their oaths of office before the Chief Justice on July 20, 2007 and have since then exercised their duties
and functions as BUHAY Party-List representatives in the current Congress.

Without a doubt, at the time Seeres filed this petition before this Court on July 23, 2007, the right of the
nominees as party-list representatives had been recognized and declared in the July 19, 2007 Resolution
and the nominees had taken their oath and already assumed their offices in the House of Representatives.
As such, the proper recourse would have been to file a petition for quo warranto before the HRET within
ten (10) days from receipt of the July 19, 2007 Resolution and not a petition for certiorari before this
Court.

Since Seeres failed to file a petition for quo warranto before the HRET within 10 days from receipt of the
July 19, 2007 Resolution declaring the validity of Robles Certificate of Nomination, said Resolution of the
COMELEC has already become final and executory. Thus, this petition has now become moot and can be
dismissed outright. And even if we entertain the instant special civil action, still, petitioners postulations
are bereft of merit.

Act of Nominating Is Not Partisan Political Activity

Petitioner Seeres contends that Robles, acting as BUHAY President and nominating officer, as well as
being the Administrator of the LRTA, was engaging in electioneering or partisan political campaign. He
bases his argument on the Constitution, which prohibits any officer or employee in the civil service from
engaging, directly or indirectly, in any electioneering or partisan political campaign.

[31] He also cites Sec. 4 of the Civil Service Law which provides that no officer or employee in the Civil
Service x x x shall engage in any partisan political activity. Lastly, he mentions Sec. 26(i) of the Omnibus
Election Code which makes it an election offense for any officer in the civil service to directly or indirectly
x x x engage in any partisan political activity.

This contention lacks basis and is far from being persuasive. The terms electioneering and partisan
political activity have well-established meanings in the Omnibus Election Code, to wit:

Section 79. x x x

(b) The term election campaign or partisan political activity refers to an act designed to promote the
election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election
of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the
election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for
nominations for candidacy to a public office by a political party, agreement, or coalition of parties shall
not be considered as election campaign or partisan election activity.

Public expression of opinions or discussions of probable issues in a forthcoming election or on attributes

of or criticisms against probable candidates proposed to be nominated in a forth coming political party
convention shall not be construed as part of any election campaign or partisan political activity
contemplated under this Article. (Emphasis supplied.)
Guided by the above perspective, Robles act of submitting a nomination list for BUHAY cannot, without
more, be considered electioneering or partisan political activity within the context of the Election Code.
First of all, petitioner did not aver that Robles committed any of the five (5) acts defined in the
aforequoted Sec. 79(b) of the Code, let alone adduce proof to show the fact of commission.

Second, even if Robles performed any of the previously mentioned acts, Sec. 79 of the Code is nonetheless
unequivocal that if the same is done only for the purpose of enhancing the chances of aspirants for
nominations for candidacy to a public office by a political party, agreement, or coalition of parties, it is not
considered as a prohibited electioneering or partisan election activity.

From this provision, one can conclude that as long as the acts embraced under Sec. 79 pertain to or are in
connection with the nomination of a candidate by a party or organization, then such are treated as
internal matters and cannot be considered as electioneering or partisan political activity. The twin acts of
signing and filing a Certificate of Nomination are purely internal processes of the party or organization
and are not designed to enable or ensure the victory of the candidate in the elections. The act of Robles of
submitting the certificate nominating Velarde and others was merely in compliance with the COMELEC
requirements for nomination of party-list representatives and, hence, cannot be treated as electioneering
or partisan political activity proscribed under by Sec. 2(4) of Art. IX(B) of the Constitution for civil
servants.

Moreover, despite the fact that Robles is a nominating officer, as well as Chief of the LRTA, petitioner was
unable to cite any legal provision that prohibits his concurrent positions of LRTA President and acting
president of a party-list organization or that bars him from nominating.

Last but not least, the nomination of Velarde, Coscolluela, Tieng, Monsod, and Villarama to the 2007
party-list elections was, in the final analysis, an act of the National Council of BUHAY. Robles role in the
nominating process was limited to signing, on behalf of BUHAY, and submitting the partys Certificate of
Nomination to the COMELEC. [32]

The act of nominating BUHAYs representatives was veritably a direct and official act of the National
Council of BUHAY and not Robles. Be that as it may, it is irrelevant who among BUHAYs officials signs the
Certificate of Nomination, as long as the signatory was so authorized by BUHAY. The alleged
disqualification of Robles as nominating officer is indeed a non-issue and does not affect the act of the
National Council of nominating Velarde and others. Hence, the Certificate of Nomination, albeit signed by
Robles, is still the product of a valid and legal act of the National Council of BUHAY. Robles connection
with LRTA could not really be considered as a factor invalidating the nomination process.
Hold-Over Principle Applies

Petitioner Seeres further maintains that at the time the Certificate of Nomination was submitted, Robles
term as President of BUHAY had already expired, thus effectively nullifying the Certificate of Nomination
and the nomination process.

Again, petitioners contention is untenable. As a general rule, officers and directors of a corporation hold
over after the expiration of their terms until such time as their successors are elected or appointed. [33]

Sec. 23 of the Corporation Code contains a provision to this effect, thus:

Section 23. The board of directors or trustees .Unless otherwise provided in this Code, the corporate
powers of all corporations formed under this Code shall be exercised, all business conducted and all
property of such corporations controlled and held by the board of directors or trustees to be elected from
among the holders of stocks, or where there is no stock, from among the members of the corporation,
who shall hold office for one (1) year until their successors are elected and qualified.

The holdover doctrine has, to be sure, a purpose which is at once legal as it is practical. It accords validity
to what would otherwise be deemed as dubious corporate acts and gives continuity to a corporate
enterprise in its relation to outsiders. [34] This is the analogical situation obtaining in the present case.
The voting members of BUHAY duly elected Robles as party President in October 1999. And although his
regular term as such President expired in October 2002,[35] no election was held to replace him and the
other original set of officers. [36] Further, the constitution and by-laws of BUHAY do not expressly or
impliedly prohibit a hold-over situation. As such, since no successor was ever elected or qualified, Robles
remained the President of BUHAY in a hold-over capacity.

Authorities are almost unanimous that one who continues with the discharge of the functions of an office
after the expiration of his or her legal termno successor having, in the meantime, been appointed or
chosenis commonly regarded as a de facto officer, even where no provision is made by law for his holding
over and there is nothing to indicate the contrary. [37] By fiction of law, the acts of such de facto officer
are considered valid and effective. [38]

So it must be for the acts of Robles while serving as a hold-over Buhay President. Among these acts was
the submission of the nomination certificate for the May 14, 2007 elections.

As a final consideration, it bears to state that petitioner is estopped from questioning the authority of
Robles as President of BUHAY. As a principle of equity rooted on natural justice, the bar of estoppel
precludes a person from going back on his own acts and representations to the prejudice of another
whom he has led to rely upon them. [39]

Again, it cannot be denied that Robles, as BUHAY President, signed all manifestations of the partys desire
to participate in the 2001 and 2004 elections, as well as all Certificates of Nomination. [40] In fact, the
corresponding certificate for the 2004 elections included petitioner as one of the nominees. During this
time, Robles term as President had already expired, and yet, petitioner never questioned Robles authority
to sign the Certificate of Nomination. As a matter of fact, petitioner even benefited from the nomination,
because he earned a seat in the House of Representatives as a result of the partys success. [41] Clearly,
petitioner cannot now be heard to argue that Robles term as president of BUHAY has long since expired,
and that his act of submitting the Certificate of Nomination and the manifestation to participate in the
2007 elections is null and void. He is already precluded from doing so.

WHEREFORE , the petition is DISMISSED . Resolution E.M. No. 07-043 of the COMELEC dated July 19,
2007 is AFFIRMED . No costs.

SO ORDERED.
 LEONILA A. VISTAN, Complainant v. JUDGE RUBEN T. NICOLAS, Municipal Trial Court, Pandi,
Bulacan, Respondent

SYLLABUS

1. JUDICIAL ETHICS; CODE OF JUDICIAL CONDUCT; TAKING ADVANTAGE OF POSITION TO BOOST

CANDIDACY; CONSTITUTES GROSS MISCONDUCT. — For having held himself out as a congressional
candidate while still a member of the Bench, Respondent took advantage of his position to boost his
candidacy, demeaned the stature of his office, and must be pronounced guilty of gross misconduct which
warrants severe censure.

2. ID.; ID.; A JUDGE IS OFFICIAL CONDUCT SHOULD BE FREE FROM IMPROPRIETY OR ANY APPEARANCE
THEREOF. — A Judge’s official conduct should be free from impropriety or any appearance thereof. His
personal behavior in the performance of official duty, as well as everyday life, should be beyond reproach
(Paguirigan v. Clavaria, AM No. 537-CJ, 19 December 1974, 61 SCRA 411). High ethical principles and a
sense of propriety should be maintained, without which the faith of the people in the judiciary so
indispensable in an orderly society cannot be preserved (Candia v. Tagabucba, AM No. 528, MJ, 12
September 1977, 79 SCRA 51). There is no place in the judiciary for those who cannot meet the exacting
standards of judicial conduct and integrity (Felix Barja v. Judge Bonifacio B. Bercacio, AM No. 561-MJ, 29
December 1976, 74 SCRA 355). In fact, moral integrity is more than a virtue; it is a necessity in the
Judiciary (Dy Teban Hardware and Auto Supply Co. v. Tapucar, AM No. 1720, 31 January 1981, 102 SCRA
494).

DECISION

PER CURIAM:

These consolidated cases were brought by the same complainant, Leonila A. Vistan, against Respondent
Judge Ruben T. Nicolas, Municipal Trial Court (MTC), Pandi, Bulacan.

AM No. MTJ-87-79, filed on 16 March 1987, charged Respondent with gross ignorance of the law and
grave abuse of authority and immorality. Complainant alleged that Respondent, as the then MTC Judge of
Guiguinto, Bulacan, rendered a Decision in Criminal Case No. 3073, entitled "People v. Narciso Paloma,"
for Forcible Abduction with Consent on 17 February 1987, acquitting the accused therein, despite the fact
that Respondent had not yet ruled on the accused’s written offer of evidence which was filed as early as
14 August 1984. Said Decision, Complainant contended, manifested Respondent’s gross ignorance of the
law and grave abuse of authority and discretion. Further, Complainant stated that Respondent was
maintaining an illicit relationship with a woman not his wife and with whom he has a child.
AM. No. MTJ-87-79 was initially dismissed on 21 February 1989 for having become moot and academic,
upon Respondent’s manifestation and after verification with the Office of the Court Administrator (OCA)
that respondent had resigned from the service when he became a congressional candidate in the 1987
election. However, such reconsideration sought by Complainant and again confirmed by the OCA (p. 44,
Rollo). Respondent was re-appointed to the service on 9 February 1989 as MTC Judge, this time, of Pandi,
Bulacan. Accordingly, AM No. MTJ87-79 was reinstated.chanrobles virtual lawlibrary

On 14 December 1989, this Court referred the immorality charge to the Executive Judge of the Regional
Trial Court (RTC), Malolos, Bulacan, for investigation, report and recommendation. The charge for gross
ignorance of the law and grave abuse of authority and discretion, on the other hand, was referred to the
Office of the Court Administrator (OCA) for evaluation, report and recommendation.

The other case, AC No. 3040, for disbarment of Respondent, was filed on 15 May 1987. The charges set
forth are basically the same as those in AM No. MTJ-87-79, namely: (1) knowingly rendering an unjust
judgment during his tenure as MTC Judge of Guiguinto, Bulacan, in Criminal Case No. 3073; (2)
immorality, for cohabiting with a paramour; and (3) violation of election laws. Except for the last charge,
the offenses attributed to Respondent are based on the same set of facts.

AC No. 3040 was, at first, referred to the Office of the Solicitor General for investigation, report and
recommendation on 6 July 1987. Hearings were conducted before said office. However, proceedings
therein were not concluded because, on 29 May 1989, the records were brought back to this Court
pursuant to a Court Resolution, dated 29 November 1989, mandating that "all complaints against justices
and judges of the lower courts filed . . . should promptly be referred to the Supreme Court for appropriate
action" ("Re: Letter of Acting Presiding Justice Rodolfo Nocon and Associate Justices Reynato Puno and
Alfredo Marigomen, all of the Court of Appeals").

On 12 February 1991, AM No. MTJ-87-79 and AC No. 3040 were ordered consolidated.

Re: Charge for Violation of Election Laws:

The charge for violation of election laws was brought up in AC No. 3040. Complainant narrated that as
early as 10 February 1987, prior to 24 March 1987, or the date set by the Commission on Election
(COMELEC) to be the start of the campaign period, and while still an MTJ Judge of Guiguinto, Bulacan,
Respondent started circulating handbills/letters addressed to electoral constituents in the second district
of Bulacan indicating his intention to run for a congressional seat. A sample of the letter (Annex "E,"
Complaint)

"Pebrero 10, 1987

"Mayor Ranulfo ‘Maran’ David

"Bocaue, Bulacan

"Mahal kong Kababayan,

"Ako po ay napiling kandidato bilang Kongresista o Kinatawan ng ikalawang purok ng Bulacan na

binubuo ng mga bayan ng Bukawe, Balagtas, Pandi, Guiguinto, Plaridel, Baliwag, at Bustos.

"Batid po nating lahat na ang ating minamahal na bayang Bukawe ay minsan pa lang nakapagpadala ng
anak sa bulwagan ng Kongreso, sa katauhan ng yumaong Kinatawan Erasmo R. Cruz na nanungkulan
mula 1950 hanggang 1957. Mula noon, wala pang anak ng Bukawe na kumatawan sa ating pambansang
lehistura.

"Ako po ay taos-pusong naniniwala na sa pamamagitan ng ating sama-samang pagsisikap at

pagtutulungan, mayroon tayong napakalaking pagkakataon na magpadala ng isa pang anak ng Bukawe sa
bagong Kongreso sa darating na Mayo 11, 1987.

"Dahil dito, kayo po ay malugod kong inaanyayahan na dumalo sa ‘kaukus-miting’ sa aking tahanan sa
117 Wakas, Bukawe, Bulakan sa Sabado, Pebrero 21, 1987 sa ganap na ikalawa ng hapon (2:00 p.m.)
upang talakayin kung paano nating makakamit ang layunin nating ito.

"Umaasa po ako sa inyong pakilipagtulungan at pagdalo sa nasabing ‘kaukus-miting.’

Maraming salamat po at pag-utusan po ninyo.

"Lubos na sumasainyo,

"RUBEN T. NICOLAS

"Hukom at naging bokal."

Respondent admitted having circulated such a letter (tsn, 12 November 1987, p. 12). He denies, however,
that he was electioneering stating that he was merely voicing out his intention to run for Congressman as
a matter of consultation.

On this score, we find that Respondent had acted improperly when he sent out letters/handbills,
manifesting his intention to run as a congressional candidate, addressed to electoral constituents of the
second district of Bulacan as early as 10 February 1987, while still the incumbent MTC Judge of
Guiguinto, Bulacan, and prior to the commencement of the campaign period on 24 March
1987.chanrobles law library
Section 45 of Pres. Decree No. 807 (Civil Service Law) clearly states: jgc:chanrobles.com.ph

"Section 45. No officer or employee in the Civil Service including members of the Armed Forces, shall
engage directly or indirectly in any partisan political activity or take part in any election except to vote
nor shall be use his official authority or influence to coerce the political activity of any other person or
body. Nothing herein provided shall be understood to prevent any officer or employee from expressing
his views on current political problems or issues, or from mentioning the names of candidates for public
office whom he supports: . . ."

In addition, Rule 5.10, Canon 5, of the Code of Judicial Conduct provides:

"Rule 5.10. A judge is entitled to entertain personal views on political questions. But to avoid suspicion of
political partisanship, a judge shall not make political speeches, contribute to party funds, publicly
endorse candidates for political office or participate in other partisan political activities."

For having held himself out as a congressional candidate while still a member of the Bench, Respondent
took advantage of his position to boost his candidacy, demeaned the stature of his office, and must be
pronounced guilty of gross misconduct.

Re: Complaint for Gross Ignorance of the Law and Grave Abuse of Authority and Discretion:

The complaint for gross ignorance of the law and grave abuse of discretion and authority was already
resolved by the Court in a Resolution, dated 4 December 1990, holding, among others:

"1) As regards the complaint for gross ignorance of the law and grave abuse of discretion, it appearing
from the records that respondent, who was then hearing Criminal Case No. 3073 as Presiding Judge of the
Municipal Trial Court of Guiguinto, Bulacan, had rendered a decision on 9 February 1987, acquitting the
accused therein despite the fact that respondent had not yet ruled on the accused’s written offer of
evidence, which was filed as early as 14 August 1985, thereby depriving the prosecution of the
opportunity to present rebuttal evidence, deciding the case prematurely, and exhibiting gross ignorance
of the law, the Court Resolved to impose upon respondent a fine of P3,000.00 payable within thirty (30)
days from notice. . . ." cralaw virtua1aw library

The fine, however, was subsequently reduced to P2,000 on 21 February 1991 upon respondent’s Motion
for Reconsideration.

Re: Charge of Immorality:

As earlier stated, the immorality charge was referred, on 14 December 1989, to the RTC Executive Judge
of Malolos, Bulacan, for investigation, report and recommendation.

Hearings were conducted by Executive Judge Natividad Dizon. The gist of complainant’s testimonial and
documentary evidence follows;

1. "Complainant testified that everytime there was a hearing before respondent’s sala in Criminal Case
No. 3073 wherein she was the private complainant, respondent’s mistress, Angelita de Castro was always
there. In fact, the latter even approached her and asked for P10,000.00 to insure success of the case. The
matter of the respondent and the mistress living together was of public knowledge and that they have
one child.

2. "Judge Tirso Reyes, RTC, Cabanatuan City, testified that he and the respondent are close friends. He
stated that he did not know any of the respondent’s children, except the one who is a lawyer whom he
met during the latter’s ‘blowout’ upon passing the bar examination. He narrated that about 10 to 12 years
ago, he stood as a baptismal sponsor to a child who, according to a certain Counselor Chico who invited
him, is allegedly respondent’s child. He, however, was not able to verify whether the child is really of
respondent as he did not see the latter during the baptismal. He remembered asking the respondent
about the child to which respondent answered back — What child? Embarrassed, Judge Reyes did not
pursue the matter anymore.

3. "Complainant’s Exhibit ‘R’ is the ‘Magkasamang Sinumpaang Salaysay’ executed by Rodelio Agapito and
Juan Mendoza’ on 21 February 1990 before the Investigating Judge. The affidavit stated that respondent
and Angelita de Castro are their neighbors; that they are living together as husband and wife though
respondent’s legal wife is Pacita Santos. The affiants stated that the affidant was executed to let the
authorities know of respondent’s immorality and want of moral fitness to be a judge."

However, because the said two (2) witnesses failed to appear for cross examination and could no longer
be located at their given addresses and considering respondent’s manifestation that he was waiving the
presentation of evidence, the Investigating Judge submitted a "Final Report" on 30 March 1990 without
any recommendation on the ground that she "did not set further hearings as they would be conducted
beyond the 30-day period requested in her partial report of 27 February 1990." On 8 May 1990, the Court
remanded the case to said Investigating Judge for "further hearings until final completion," considering
that the "Final Report" so-called was far from final.

On 16 July 1990, Executive Judge Dizon submitted a "Complete and Final Report." It reiterated the
evidence previously submitted before her and added as documentary evidence the entry in the police
blotter (Exhs. M, M-1 to M-2) that Angelita le Castro, Respondent’s alleged paramour was murdered on
14 May 1987. In addition, respondent’s Personal Data Sheet (Exh. L) was presented showing that he is
married to Pacita G. Santos with whom he has nine (9) children. The Report concluded that the evidence
submitted was "not sufficient to hold respondent administratively liable for immorality," and
recommended the dismissal of the charge.

Directed to submit an evaluation, report and recommendation, the OCA came up with a Memorandum on
29 August 1990, recommending that the proper penalty be meted against Respondent.

The Memorandum partly states:

"We wish to disagree on the conclusion of the Executive Judge that there was no sufficient evidence to
prove the immorality charge because it can be adduced that while the respondent was not able to cross-
examine the two affiants because of their sudden and mysterious disappearance from their residential
places after testifying in court and attesting to the truthfulness of their statements which were not
disputed by respondent other than his specific denials, creates an impression in the mind to form a belief
as to the truth of the same; and considering that a judge, by reason of his office, exercises considerable
influence in the community within his territorial jurisdiction to frustrate the ends of justice if he so
desires which he pledged to uphold in the first place.

"Judge Tirso Reyes testified that he was one of the sponsors to a baptism of an alleged son of respondent
judge whose name he recalls to be Richard but does not, however, remember the church where the same
was celebrated other than it was somewhere in Manila; that he never bothered to ask for the surname of
said Richard after being told that he was the son of the Respondent. A closer scrutiny of said facts will
readily reveal that a person with the reputation and status of an RTC judge will not just act as sponsor to
a baptism of any child whose parents he does not know every well and at the mere invitation of someone
who is not even a relative of said child, because it was very unnatural for him not to have at least asked
for the names of the father and mother of the child; considering further that it would have been but
natural for Judge Reyes to protect the herein respondent whom he acknowledged to be his close friend
and ‘compadre’ by the way he testified during the investigation.

"Moreover, what is required only to prove the charges in administrative cases is mere preponderance of
evidence and not proof beyond reasonable doubt. Furthermore, we strongly believe that the failure of
respondent to cross-examine the two witnesses cannot be attributed mainly to complainant as there
appears a very strong presumption that their sudden disappearance is but a part of the legal strategy
adopted by respondent for his defense."
Faced with the discrepancy in recommendations, the Court referred the case back to the OCA on 27
September 1990 for further investigation, this time "with the assistance of the National Bureau of
Investigation (NBI), particularly with respect to the disappearance of the two material witnesses, Rodelio
Agapito and Juan Mendoza, and the ‘brutal death’ of respondent’s alleged paramour, Angelita de Castro."
cralaw virtua1aw library

The NBI conducted the investigation requested. On 26 November 1990 it submitted its report, excerpts
from which follow:

a. "The two material witnesses, Rodelio Agapito and Juan Mendoza, were located. They executed sworn
statements alleging:

‘1. that they personally know Judge Nicolas and his paramour, Angelita de Castro, the two being their
neighbors in Bocaue, Bulacan;

‘2. that respondent and Angelita publicly represented themselves as husband and wife;

‘3. that they were subpoenaed to testify against respondent but they did not appear during hearing
because they were harassed and prevented by a certain Benito Mendoza, a neighborhood toughie and
allegedly a benchman of respondent, who acted under his order.’

b. "Interviews with the neighbors of respondent and his paramour revealed that the two had represented
themselves to be husband and wife. The neighbors just kept quiet for respondent wields considerable
influence in the community.

c. "That respondent’s legal wife is Pacita Nicolas. They have their residence in Bocaue, Bulacan.

d. "With respect to the murder of Angelita de Castro, investigation revealed the latter was picked up by
three men — Moises Joson, Jr., Ramon Mamangon and Reynaldo Agapito — on the night of 14 May 1987.
It was the last time that Angelita was seen alive. Her decomposing body was found only on 19 May 1987,
in Guiguinto, Bulacan.

"It appears that there was a Resolution recommending that an information for murder against the three
men who picked up Angelita be filed. However, it was only on 3 October 1990, when the NBI started
making inquiries that the criminal information was filed.

"The NBI also arrested one of the suspects, Ramon Mamangon. He admitted having picked-up Angelita on
the evening of 14 May 1988 and his participation in her killing. He said that respondent’s legal children,
together with Moises Joson, Jr. and Reynaldo Agapito, were the ones how planned the killing. Ramon,
however, claims that respondent had no participation as he left for Baguio a day before the killing
occurred.

"NBI has reason to believe that, on the basis of the following circumstantial evidence, respondent and his
children orchestrated the death of Angelita de Castro:

"1. Judge Nicholas (sic) borrowed the jeep used in the commission of the crime two weeks before the
incident on April 30, 1987.

"3. Conversations of the children of Judge Nicholas with Moises Joson, Jr. and Reynaldo Agapito before the
incident.

"7. Victim is a witness who is scheduled to testify against subject Judge Nicholas who has pending
administrative case for immorality before the Supreme Court. (Disposition Form pp. 3-4)." cralaw
virtua1aw library

On 4 December 1990, upon the recommendation of OCA, and "there (being) prima facie proof that the
immorality charge is true, that the charge is related to the death of Angelita de Castro, alleged paramour
of respondent Judge, and that there is reason to believe that with the circumstantial evidence thus far
gathered, ‘that respondent together with his children orchestrated her death,’ the Court Resolved to
Preventively Suspend from office respondent Judge . . ., pending submission of the final report of the NBI
and final resolution of the administrative case against him."

Respondent moved for the lifting of his preventive suspension on the grounds that the charge of
immorality was "duly heard, but not proven, before the Executive Judge of the Regional Trial Court of
Malolos, Bulacan, who recommended dismissal; that to "relate the charge to the death of his alleged
paramour is going beyond the bounds of due process and fair play;" that the Court should not rely on
"hearsay evidence of the NBI; and that in the absence of any criminal charge, there can be no preventive
suspension."

On 21 February 1991, the Court denied the lifting of Respondent’s preventive suspension stating that
"preventive suspension may be imposed pending an investigation if the charge involves grave
misconduct, or if there are reasons to believe that the respondent is guilty of charges which would
warrant his removal from the service (Pres. Decree No. 807, Sec. 41; 1987 Revised Administrative Code,
Book V, Title I, Subtitle A, Chapter 6, Sec. 51). Immorality does involve grave misconduct, and the NBI
finding is that there is prima facie proof that the charge is true."
On 14 January 1991, the NBI submitted its Final Report recommending that copies of the case records be
furnished the Provincial Prosecutor of Bulacan and that six (6) members of respondent Judge’s family,
including the latter, be charged with and prosecuted for Murder.

On 12 February 1991, because material witnesses Rodelio Agapito and Juan Mendoza had been located
by the NBI, the immorality charge was again referred to Executive Judge Natividad Dizon for continuation
of investigation, report and recommendation. Further, the Provincial Prosecutor of Bulacan was ordered
furnished with a copy of the NBI report finding a prima facie case for Murder.

Hearings were resumed by Executive Judge Dizon, during which witnesses Agapito and Mendoza
recanted their joint affidavit. Respondent Judge appeared either through counsel or on his own behalf. He
did not present any evidence.

On 17 July 1991, Executive Judge Dizon submitted her Report recommending that the proper penalty be
meted against respondent Judge. She found the recantation of witnesses Agapito and Mendoza unworthy
of belief after assessing the other evidence before her.

We agree with the recommendation.

Even if we were to discard the "Magkasamang Sinumpaang Salaysay" of Rodelio Agapito and Juan
Mendoza, the investigation below revealed that they had also executed separate Affidavits before the NBI
substantially of the same tenor, which new Affidavits were sworn to before Deputy Court Administrator
Reynaldo L. Suarez. NBI Agent, Atty. Deborah Daquis, who headed a Special Task Force conducting the
investigation, testified that those fresh statements were given voluntarily and that they had never
complained against their "Sinumpaang Salaysay," which had previously been taken before the
Investigating Judge on 21 February 1990.

Significantly, in his Affidavit of 12 October 1990, Rodelio Agapito stated the he was not able to attend
prior hearings conducted by Executive Judge Natividad Dizon between May to June, 1990, because he was
prevented by a certain "Bening," a neighborhood toughie and respondent’s alleged henchman, from
attending the hearings upon respondent’s order.

Moreover, the NBI investigation further revealed:

"Interviews conducted by the undersigned from Subject Judge Nicolas’ neighbors at Mendoza Street,
Barangay Officials of Lolomboy, owner of Zaldy’s Funeral Parlor at Bocaue, Dr. Benito B. Caballero of
Municipal Health Unit of Bocaue and policemen of Bocaue Police Station, all reveal that subject Judge and
Angelita de Castro have indeed openly and publicly represented themselves to be husband and wife. But
because they know him to be a judge with considerable influence in the community, the residents of
Bocaue, Bulacan, just kept silent about it despite their knowledge that Judge Nicolas is legally and
lawfully married to one Pacita S. Nicolas and is living with the former at Malolos, Bocaue, Bulacan."

To make matters worse, respondent’s integrity and reputation is further sullied by his seeming
involvement in the killing of Angelita de Castro. This incident, however, is now in the hands of the
Provincial Prosecutor of Bulacan for such action as he deems proper to take in the premises.

Upon the evidence before us in this administrative case, where preponderance of evidence suffices, and
considering the exacting and stringent standards exacted of occupants of the Bench, the supreme
sanction is called for.

A Judge’s official conduct should be free from impropriety or any appearance thereof. His personal
behavior in the performance of official duty, as well as everyday life, should be beyond reproach
(Paguirigan v. Clavaria, AM No. 537-CJ, 19 December 1974, 61 SCRA 411). High ethical principles and a
sense of propriety should be maintained, without which the faith of the people in the judiciary so
indispensable in an orderly society cannot be preserved (Candia v. Tagabucba, AM No. 528, MJ, 12
September 1977, 79 SCRA 51). There is no place in the judiciary for those who cannot meet the exacting
standards of judicial conduct and integrity (Felix Barja v. Judge Bonifacio B. Bercacio, AM No. 561-MJ, 29
December 1976, 74 SCRA 355). In fact, moral integrity is more than a virtue; it is a necessity in the
Judiciary (Dy Teban Hardware and Auto Supply Co. v. Tapucar, AM No. 1720, 31 January 1981, 102 SCRA
494).

WHEREFORE, 1) in AC No. 3040, the prayer for disbarment is DENIED but respondent Municipal Trial
Court Judge, Ruben T. Nicolas, is SEVERELY CENSURED for his gross misconduct in holding himself out as
a candidate for an elective office while still a member of the Bench; 2) in A.M. No. MTJ-87-79, respondent
Judge is hereby DISMISSED from the service, with prejudice to re-employment in any branch, agency or
instrumentality of the government including government-owned or controlled corporations, and with
forfeiture of all his accrued retirement benefits and leave credits, if any.

Let a copy of this Decision be spread in his personal record.

SO ORDERED.
 [G.R. No. 189698: February 22, 2010] ELEAZAR P. QUINTO AND GERINO A. TOLENTINO, JR.,
PETITIONERS, VS. COMMISSION ON ELECTIONS, RESPONDENT

RESOLUTION

PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on
Elections' (COMELEC) motion for reconsideration, and the movants-intervenors' motions for
reconsideration-in-intervention, of this Court's December 1, 2009 Decision (Decision). [1]

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and
Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of
Section 13 of Republic Act No. 9369, [2] Section 66 of the Omnibus Election Code [3] and Section 4(a) of
COMELEC Resolution No. 8678,[4] mainly on the ground that they violate the equal protection clause of
the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public
appointive officials to continue discharging the powers, prerogatives and functions of their office
notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the
participation of public appointive officials and members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord differential
treatment to elective and appointive officials, because such differential treatment rests on material and
substantial distinctions and is germane to the purposes of the law;

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and

(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such
reversal.

We find the foregoing arguments meritorious.

I. Procedural Issues

First, we shall resolve the procedural issues on the timeliness of the COMELEC's motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009
Decision.

i. Timeliness of COMELEC's Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section 1, Rule 52 of the
same rules, [6] COMELEC had a period of fifteen days from receipt of notice of the assailed Decision
within which to move for its reconsideration. COMELEC received notice of the assailed Decision on
December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The
corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009)
was subsequently filed on December 17, 2009 - still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties, or an
interest against both, or is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights
may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained
when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial
right or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in
another proceeding. [7]

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for
intervention may be filed, viz.:

SECTION 2. Time to intervene.- The motion for intervention may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and
served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed
in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to
afford indispensable parties, who have not been impleaded, the right to be heard even after a decision
has been rendered by the trial court, [8] when the petition for review of the judgment has already been
submitted for decision before the Supreme Court,[9] and even where the assailed order has already
become final and executory. [10] In Lim v. Pacquing ,[11] the motion for intervention filed by the
Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle
once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the
court[12] after consideration of the appropriate circumstances. [13] We stress again that Rule 19 of the
Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely
available for justice. [14] Its purpose is not to hinder or delay, but to facilitate and promote the
administration of justice. [15]

We rule that, with the exception of the IBP - Cebu City Chapter, all the movants-intervenors may properly
intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in the
case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009
Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that
involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust
and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May
2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have
not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly
injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court's Decision attains
finality and forms part of the laws of the land.

With regard to the IBP - Cebu City Chapter, it anchors its standing on the assertion that "this case involves
the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need
for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be
heard before this Highest Tribunal as it resolves issues of transcendental importance." [16]
Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at
bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.

We now turn to the substantive issues.

II. Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the
following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential treatment of
persons holding appointive offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive
posts: (a) without distinction as to whether or not they occupy high/influential positions in the
government, and (b) they limit these civil servants' activity regardless of whether they be partisan or
nonpartisan in character, or whether they be in the national, municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public
appointive officials.

We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66
of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are
not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III.

Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:

Incumbent Appointive Official - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus
Election Code, any person holding a public appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy.
Incumbent Elected Official - Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election
Act,[17] which repealed Section 67 of the Omnibus Election Code [18] and rendered ineffective Section
11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign
period corresponding to the positions for which they are running, [19] an elected official is not deemed to
have resigned from his office upon the filing of his certificate of candidacy for the same or any other
elected office or position. In fine, an elected official may run for another position without forfeiting his
seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which
prohibits civil service officers and employees from engaging in any electioneering or partisan political
campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees in
partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

xxxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No
officer or employee in the civil service shall engage, directly or indirectly, in any partisan political
activity." This is almost the same provision as in the 1973 Constitution. However, we in the government
service have actually experienced how this provision has been violated by the direct or indirect partisan
political activities of many government officials.

So, is the Committee willing to include certain clauses that would make this provision more strict, and
which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are
more than exhaustive enough to really prevent officers and employees in the public service from
engaging in any form of partisan political activity. But the problem really lies in implementation because,
if the head of a ministry, and even the superior officers of offices and agencies of government will
themselves violate the constitutional injunction against partisan political activity, then no string of words
that we may add to what is now here in this draft will really implement the constitutional intent against
partisan political activity . x x x [20] (italics supplied)
To emphasize its importance, this constitutional ban on civil service officers and employees is presently
reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter
8 - both of Subtitle A, Title I, Book V of the Administrative Code of 1987 - respectively provide in relevant
part:

Section 44. Discipline: General Provisions:

xxxx

(b) The following shall be grounds for disciplinary action:

xxxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxxx

Section 55. Political Activity. -- No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote nor shall he use his official authority or influence to coerce the political activity of
any other person or body. Nothing herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or issues, or from mentioning the
names of his candidates for public office whom he supports: Provided, That public officers and employees
holding political offices may take part in political and electoral activities but it shall be unlawful for them
to solicit contributions from their subordinates or subject them to any of the acts involving subordinates
prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by
civil service officers and employees in partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. -- The following shall be guilty of an election offense:

xxxx

(i) Intervention of public officers and employees. -- Any officer or employee in the civil service, except
those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines,
or any police force, special forces, home defense forces, barangay self-defense units and all other para-
military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes
in any election campaign or engages in any partisan political activity, except to vote or to preserve public
order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to limit the participation of civil service
officers and employees in partisan political activities is too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil
servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected
officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters." [21] This is because elected public officials, by the very nature of
their office, engage in partisan political activities almost all year round, even outside of the campaign
period. [22] Political partisanship is the inevitable essence of a political office, elective positions included.
[23]

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as
express their views on political issues, or mention the names of certain candidates for public office whom
they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:

MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4,
lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING
AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word
CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was
adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a
guarantee to the right to vote but as a qualification of the general prohibition against taking part in
elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition,
it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional
right. In other words, the Legislature can always pass a statute which can withhold from any class the
right to vote in an election, if public interest so required. I would only like to reinstate the qualification by
specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from
participating in partisan political campaigns or electioneering may vote.
MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on
the part of the Committee to disenfranchise any government official or employee. The elimination of the
last clause of this provision was precisely intended to protect the members of the civil service in the
sense that they are not being deprived of the freedom of expression in a political contest . The last phrase
or clause might have given the impression that a government employee or worker has no right
whatsoever in an election campaign except to vote, which is not the case. They are still free to express
their views although the intention is not really to allow them to take part actively in a political campaign.
[24]

IV.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and

Section 66 of the Omnibus Election Code Do Not Violate the

Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the
second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection
clause of the Constitution.

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged
in the case at bar violate the equal protection clause of the Constitution in Fariñas,

et al. v. Executive Secretary , et al. [25]

In Fariñas , the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67
of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates
against appointive officials. As Section 14 repealed Section 67 ( i.e., the deemed-resigned provision in
respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso
facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since
Section 66 was not repealed, the limitation on appointive officials continues to be operative - they are
deemed resigned when they file their certificates of candidacy.

The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the end in
view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials.
We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as
there are material and significant distinctions between the two classes of officials. Consequently, the
contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus
Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the equal
protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable
classification. If the groupings are characterized by substantial distinctions that make real differences,
one class may be treated and regulated differently from the other. The Court has explained the nature of
the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is
limited either in the object to which it is directed or by territory within which it is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making
a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy
their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and
may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold
their office by virtue of their designation thereto by an appointing authority. Some appointive officials
hold their office in a permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title
I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order
No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from
engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same
provision, elective officials, or officers or employees holding political offices, are obviously expressly
allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it
proper to treat these two classes of officials differently with respect to the effect on their tenure in the
office of the filing of the certificates of candidacy for any position other than those occupied by them.
Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e. , elected officials vis-Ã -vis
appointive officials, is anchored upon material and significant distinctions and all the persons belonging
under the same classification are similarly treated, the equal protection clause of the Constitution is, thus,
not infringed.[26]

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave
it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere . This doctrine,
which is really "adherence to precedents," mandates that once a case has been decided one way, then
another case involving exactly the same point at issue should be decided in the same manner. [27] This
doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial
decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial
Process:

It will not do to decide the same question one way between one set of litigants and the opposite way
between another. "If a group of cases involves the same point, the parties expect the same decision. It
would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against
me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to precedent must then be the rule rather than the
exception if litigants are to have faith in the even-handed administration of justice in the courts .[28]

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be
minimalized as mere obiter dictum . It is trite to state that an adjudication on any point within the issues
presented by the case cannot be considered as obiter dictum. [29] This rule applies to all pertinent
questions that are presented and resolved in the regular course of the consideration of the case and lead
up to the final conclusion, and to any statement as to the matter on which the decision is predicated.[30]
For that reason, a point expressly decided does not lose its value as a precedent because the disposition
of the case is, or might have been, made on some other ground; or even though, by reason of other points
in the case, the result reached might have been the same if the court had held, on the particular point,
otherwise than it did. [31] As we held in Villanueva, Jr. v. Court of Appeals, et al.: [32]
... A decision which the case could have turned on is not regarded as obiter dictum merely because, owing
to the disposal of the contention, it was necessary to consider another question, nor can an additional
reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as
dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine
the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as
to every point decided, and none of such points can be regarded as having the status of a dictum, and one
point should not be denied authority merely because another point was more dwelt on and more fully
argued and considered, nor does a decision on one proposition make statements of the court regarding
other propositions dicta.[33] (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.

To start with, the equal protection clause does not require the universal application of the laws to all
persons or things without distinction. [34] What it simply requires is equality among equals as
determined according to a valid classification.

[35] The test developed by jurisprudence here and yonder is that of reasonableness, [36] which has four
requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class. [37]

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third
and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential
treatment of appointive officials vis-Ã -vis elected officials is not germane to the purpose of the law,
because "whether one holds an appointive office or an elective one, the evils sought to be prevented by
the measure remain," viz. :

... For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the
same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent
past, elected Vice-Presidents were appointed to take charge of national housing, social welfare
development, interior and local government, and foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat them differently when both file their [Certificates
of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example,
running this time, let us say, for President, retains his position during the entire election period and can
still use the resources of his office to support his campaign.[38]

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the
Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."
[39] In addressing a societal concern, it must invariably draw lines and make choices, thereby creating
some inequity as to those included or excluded.[40] Nevertheless, as long as "the bounds of reasonable
choice" are not exceeded, the courts must defer to the legislative judgment. [41] We may not strike down
a law merely because the legislative aim would have been more fully achieved by expanding the class.
[42] Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it
unconstitutionally arbitrary or invidious. [43] There is no constitutional requirement that regulation
must reach each and every class to which it might be applied; [44] that the Legislature must be held
rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a
classification that is "palpably arbitrary or capricious." [45] He must refute all possible rational bases for
the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,
[46] such that the constitutionality of the law must be sustained even if the reasonableness of the
classification is "fairly debatable." [47] In the case at bar, the petitioners failed - and in fact did not even
attempt - to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this
point even while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statute's distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that
there is no reasonably rational reason for the differing treatment.[48]

In the instant case, is there a rational justification for excluding elected officials from the operation of the
deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power
of the people.[49] It involves the choice or selection of candidates to public office by popular vote. [50]
Considering that elected officials are put in office by their constituents for a definite term, it may
justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost
respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will
of the electorate that they be served by such officials until the end of the term for which they were
elected. In contrast, there is no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of
the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public
service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to
balance this with the competing, yet equally compelling, interest of deferring to the sovereign will. [51]
(emphasis in the original)

In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law
that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a
situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and
elected officials, over another in which a significant portion thereof is contained. The absurdity of that
position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials
(vis-Ã -vis appointive officials) have greater political clout over the electorate, is indeed a matter worth
exploring - but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the
Legislature that is given the authority, under our constitutional system, to balance competing interests
and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the
Legislature's power to make the deemed-resigned provisions applicable to elected officials, should it later
decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in
favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain
and impose on the people the best state of affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted
to, and extensively cited, Mancuso v. Taft .[52] This was a decision of the First Circuit of the United States
Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory
provision. Pathetically, our assailed Decision, relying on

Mancuso, claimed:

(1) The right to run for public office is "inextricably linked" with two fundamental freedoms - freedom of
expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be subjected to
strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public
work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as
to render them unconstitutional.

It then concluded with the exhortation that since "the Americans, from whom we copied the provision in
question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that
we, too, should follow suit."

Our assailed Decision's reliance on Mancuso is completely misplaced. We cannot blink away the fact that
the United States Supreme Court effectively overruled Mancuso three months after its promulgation by
the United States Court of Appeals. In United States Civil Service Commission, et al. v. National
Association of Letter Carriers AFL-CIO, et al. [53] and Broadrick, et al. v. State of Oklahoma, et al .,[54] the
United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal
[55] and state[56] employees from taking an active part in political management or in political campaigns
were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal
from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly from
those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore
balance the legitimate interest of employee free expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees' expression interferes with the maintenance
of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv)
the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered
by any statutory restrictions.[57] Therefore, insofar as government employees are concerned, the correct
standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness
of fit between the governmental interests and the prohibitions in question. [58]

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan
political activities by federal employees must be limited if the Government is to operate effectively and
fairly, elections are to play their proper part in representative government, and employees themselves
are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees
are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of
the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek
to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education, [59] the government has an interest in
regulating the conduct and `the speech of its employees that differ(s) significantly from those it possesses
in connection with regulation of the speech of the citizenry in general. The problem in any case is to
arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of
public concern and the interest of the (government), as an employer, in promoting the efficiency of the
public services it performs through its employees.' Although Congress is free to strike a different balance
than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously
important interests sought to be served by the limitations on partisan political activities now contained
in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government, or
those working for any of its agencies, should administer the law in accordance with the will of Congress,
rather than in accordance with their own or the will of a political party. They are expected to enforce the
law and execute the programs of the Government without bias or favoritism for or against any political
party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of
Government-the impartial execution of the laws-it is essential that federal employees, for example, not
take formal positions in political parties, not undertake to play substantial roles in partisan political
campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce
the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they appear to the public to
be avoiding it, if confidence in the system of representative Government is not to be eroded to a
disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was perhaps the
immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly
expanding Government work force should not be employed to build a powerful, invincible, and perhaps
corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that
these dangers were sufficiently real that substantial barriers should be raised against the party in power-
or the party out of power, for that matter-using the thousands or hundreds of thousands of federal
employees, paid for at public expense, to man its political structure and political campaigns.
A related concern, and this remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political performance, and at
the same time to make sure that Government employees would be free from pressure and from express
or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their
superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are
sufficient protection; but for many years the joint judgment of the Executive and Congress has been that
to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is
not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the
hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the
Chairman of the Civil Service Commission stated that `the prohibitions against active participation in
partisan political management and partisan political campaigns constitute the most significant
safeguards against coercion.’ Perhaps Congress at some time will come to a different view of the realities
of political life and Government service; but that is its current view of the matter, and we are not now in
any position to dispute it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event.
[60] x x x

xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of
Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible,
viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political
conduct of state employees. Appellants freely concede that such restrictions serve valid and important
state interests, particularly with respect to attracting greater numbers of qualified people by insuring
their job security, free from the vicissitudes of the elective process, and by protecting them from `political
extortion. ‘Rather, appellants maintain that however permissible, even commendable, the goals of s 818
may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to
distinguish between conduct that may be proscribed and conduct that must be permitted. For these and
other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and
cannot be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly vague.[61] We have little doubt that s 818 is
similarly not so vague that `men of common intelligence must necessarily guess at its meaning.' [62]
Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to
give adequate warning of what activities it proscribes or fails to set out `explicit standards' for those who
must apply it. In the plainest language, it prohibits any state classified employee from being `an officer or
member' of a `partisan political club' or a candidate for `any paid public office.' It forbids solicitation of
contributions `for any political organization, candidacy or other political purpose' and taking part `in the
management or affairs of any political party or in any political campaign.' Words inevitably contain germs
of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818
as `partisan,' or `take part in,' or `affairs of' political parties. But what was said in Letter Carriers , is
applicable here: `there are limitations in the English language with respect to being both specific and
manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on
finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common
sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x

xxxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well
as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked
in this manner here.

xxxx

The consequence of our departure from traditional rules of standing in the First Amendment area is that
any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression. Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates
as the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech'
toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal
laws that reflect legitimate state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected
speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with
confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute
against conduct that is admittedly within its power to proscribe . To put the matter another way,
particularly where conduct and not merely speech is involved, we believe that the overbreadth of a
statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate
sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist
should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly,
may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its
terms, at political expression which if engaged in by private persons would plainly be protected by the
First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at
particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed
and neutral manner. As indicted, such statutes have in the past been subject to a less exacting
overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct
that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was
established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter
Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it
forbids classified employees from: soliciting contributions for partisan candidates, political parties, or
other partisan political purposes; becoming members of national, state, or local committees of political
parties, or officers or committee members in partisan political clubs, or candidates for any paid public
office ; taking part in the management or affairs of any political party's partisan political campaign;
serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an
active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or
helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign
literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political
party or partisan political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other
improper applications. But, as presently construed, we do not believe that s 818 must be discarded in
toto because some persons' arguably protected conduct may or may not be caught or chilled by the
statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face.
(italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were
decided based on a different set of facts,"

viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to
enforce, the Hatch Act's prohibition against "active participation in political management or political
campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get
federal employees to run for state and local offices, to participate as delegates in party conventions, and
to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic)
Oklahoma's Merit System of Personnel Administration Act restricting the political activities of the State's
classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities
of federal employees. Prior to the commencement of the action, the appellants actively participated in the
1970 reelection campaign of their superior, and were administratively charged for asking other
Corporation Commission employees to do campaign work or to give referrals to persons who might help
in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign
posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso,
a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate
for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then
began the process of enforcing the resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso.
x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim,
Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz. :

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative
to the Rhode Island General Assembly. He assailed the constitutionality of §14.09(c) of the City Home
Rule Charter, which prohibits " continuing in the classified service of the city after becoming a candidate
for nomination or election to any public office. "
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act's prohibition against "active participation in political management
or political campaigns" [63] with respect to certain defined activities in which they desired to engage. The
plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among
others, running in local elections for offices such as school board member, city council member or mayor;

(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough
Councilman in his local community for fear that his participation in a partisan election would endanger
his job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan
election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job
by reason of violation of the Hatch Act.

The Hatch Act defines "active participation in political management or political campaigns" by cross-
referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office : Candidacy for a nomination or for election to any National, State, county, or
municipal office is not permissible . The prohibition against political activity extends not merely to formal
announcement of candidacy but also to the preliminaries leading to such announcement and to
canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy.
The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends
in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against
political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons. [64]

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of
unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma's Merit System of Personnel
Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that " [n]o employee
in the classified service shall be ... a candidate for nomination or election to any paid public office... "
Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited
state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled
Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and
Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court,
the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals - the
same court that decided

Mancuso - to hold categorically and emphatically in Magill v. Lynch [65] that Mancuso is no longer good
law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket's "Little
Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a
candidate for any city office is specifically proscribed, [66] the violation being punished by removal from
office or immediate dismissal. The firemen brought an action against the city officials on the ground that
that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter
Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed
that the view that political candidacy was a fundamental interest which could be infringed upon only if
less restrictive alternatives were not available, was a position which was no longer viable, since the
Supreme Court (finding that the government's interest in regulating both the conduct and speech of its
employees differed significantly from its interest in regulating those of the citizenry in general) had given
little weight to the argument that prohibitions against the coercion of government employees were a less
drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to
determine whether limits on political activity by public employees substantially served government
interests which were "important" enough to outweigh the employees' First Amendment rights. [67]

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was
characterized as nonpartisan , as it was reasonable for the city to fear, under the circumstances of that
case, that politically active bureaucrats might use their official power to help political friends and hurt
political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy
in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent
Supreme Court decisions,

Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws
barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v.
Mitchell , upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained
Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's
construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that
proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and
Broadrick compel new analysis.

xxxx

What we are obligated to do in this case, as the district court recognized, is to apply the Court's interest
balancing approach to the kind of nonpartisan election revealed in this record. We believe that the
district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter
Carriers. We have particular reference to our view that political candidacy was a fundamental interest
which could be trenched upon only if less restrictive alternatives were not available. While this approach
may still be viable for citizens who are not government employees, the Court in Letter Carriers
recognized that the government's interest in regulating both the conduct and speech of its employees
differs significantly from its interest in regulating those of the citizenry in general. Not only was United
Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument
that prohibitions against the coercion of government employees were a less drastic means to the same
end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort of 'balancing' process". [68] It appears that the
government may place limits on campaigning by public employees if the limits substantially serve
government interests that are "important" enough to outweigh the employees' First Amendment rights. x
x x (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court detailed the major
governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as
follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful
to the Congress rather than to party. The district court discounted this interest, reasoning that candidates
in a local election would not likely be committed to a state or national platform. This observation
undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different
kind of possible political intrusion into efficient administration could be thought to threaten municipal
government: not into broad policy decisions, but into the particulars of administration favoritism in
minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning,
licensing, and inspections. Just as the Court in

Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political
justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment
in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's
authors evidently feared is not exorcised by the nonpartisan character of the formal election process.
Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city
might reasonably fear that politically active bureaucrats would use their official power to help political
friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective
administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not
heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily
identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful
political machine. The Court had in mind the large and growing federal bureaucracy and its partisan
potential. The district court felt this was only a minor threat since parties had no control over
nominations. But in fact candidates sought party endorsements, and party endorsements proved to be
highly effective both in determining who would emerge from the primary election and who would be
elected in the final election. Under the prevailing customs, known party affiliation and support were
highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that
a politically active public work force would give the incumbent party, and the incumbent workers, an
unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate
and the limited powers of local government may inhibit the growth of interest groups powerful enough to
outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at
stake, isolated government employees may seek to influence voters or their co-workers improperly; but a
more real danger is that a central party structure will mass the scattered powers of government workers
behind a single party platform or slate. Occasional misuse of the public trust to pursue private political
ends is tolerable, especially because the political views of individual employees may balance each other
out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a
handful of employees pressured into advancing their immediate superior's political ambitions, the entire
government work force may be expected to turn out for many candidates in every election. In Pawtucket,
where parties are a continuing presence in political campaigns, a carefully orchestrated use of city
employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by
the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve
advancement on their merits and that they be free from both coercion and the prospect of favor from
political activity. The district court did not address this factor, but looked only to the possibility of a civil
servant using his position to influence voters, and held this to be no more of a threat than in the most
nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains
as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and
coordinated exploitation of public servants for political ends that a legislature is most likely to see as the
primary threat of employees' rights. Political oppression of public employees will be rare in an entirely
nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even
in a nonpartisan context, but without party officials looking over their shoulders most supervisors will
prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally
nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial
party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of
their force. While the employees' First Amendment rights would normally outbalance these diminished
interests, we do not suggest that they would always do so. Even when parties are absent, many employee
campaigns might be thought to endanger at least one strong public interest, an interest that looms larger
in the context of municipal elections than it does in the national elections considered in Letter Carriers.
The city could reasonably fear the prospect of a subordinate running directly against his superior or
running for a position that confers great power over his superior. An employee of a federal agency who
seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency
than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion,
cliques, and political bargaining, should an employee gather substantial political support, are
considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the
petitioners' overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken
lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick , which introduced the doctrine of "substantial" overbreadth in a closely
analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally
unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at
unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged
in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to
distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first
inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were
subject to discipline under a law proscribing a wide range of activities, including soliciting contributions
for political candidates and becoming a candidate. The Court found that this combination required a
substantial overbreadth approach. The facts of this case are so similar that we may reach the same result
without worrying unduly about the sometimes opaque distinction between speech and conduct.
The second difficulty is not so easily disposed of.

Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has
gone further, banning participation in nonpartisan campaigns as well.

Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing
of the number of valid applications compared to the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight
as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of
one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth
challenger has a duty to provide the court with some idea of the number of potentially invalid
applications the statute permits. Often, simply reading the statute in the light of common experience or
litigated cases will suggest a number of probable invalid applications. But this case is different. Whether
the statute is overbroad depends in large part on the number of elections that are insulated from party
rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal
elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties
play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee
candidates, for example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken
lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period
before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very
well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate
that the charter forecloses access to a significant number of offices, the candidacy for which by municipal
employees would not pose the possible threats to government efficiency and integrity which Letter
Carriers, as we have interpreted it, deems significant . Accordingly, we remand for consideration of
plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily
relied upon by the ponencia, has effectively been overruled. [69] As it is no longer good law, the
ponencia's exhortation that "[since] the Americans, from whom we copied the provision in question, had
already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should
follow suit" is misplaced and unwarranted.

[70]
Accordingly, our assailed Decision's submission that the right to run for public office is "inextricably
linked" with two fundamental freedoms - those of expression and association - lies on barren ground.
American case law has in fact never recognized a fundamental right to express one's political views
through candidacy, [71] as to invoke a rigorous standard of review.

[72] Bart v. Telford [73] pointedly stated that "[t]he First Amendment does not in terms confer a right to
run for public office, and this court has held that it does not do so by implication either." Thus, one's
interest in seeking office, by itself, is not entitled to constitutional protection.[74] Moreover, one cannot
bring one's action under the rubric of freedom of association, absent any allegation that, by running for
an elective position, one is advancing the political ideas of a particular set of voters.[75]

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are
not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e. , (i) efficient civil service faithful to the government and the people rather
than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the
danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their
merits and that they be free from both coercion and the prospect of favor from political activity) . These
are interests that are important enough to outweigh the non-fundamental right of appointive officials and
employees to seek elective office.

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing[76] and Morial, et al.
v. Judiciary Commission of the State of Louisiana, et al.[77] to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made applicable to specified officials, he explains:

...U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when
applied to specified or particular officials, as distinguished from all others ,[78] under a classification that
is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general
and sweeping provision , and thus did not violate the test of being germane to the purpose of the law , the
second requisite for a valid classification. Directed, as they were, to particular officials, they were not
overly encompassing as to be overbroad. (emphasis in the original)

This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in
these cases were upheld not because they referred to specified or particular officials (vis-Ã -vis a general
class); the questioned provisions were found valid precisely because the Court deferred to legislative
judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be
incomplete . In fact, the equal protection challenge in Clements revolved around the claim that the State
of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while
others are not. Ruled the United States Supreme Court:

Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically
resign their positions if they become candidates for any other elected office, unless the unexpired portion
of the current term is one year or less. The burdens that § 65 imposes on candidacy are even less
substantial than those imposed by § 19. The two provisions, of course, serve essentially the same state
interests. The District Court found § 65 deficient, however, not because of the nature or extent of the
provision's restriction on candidacy, but because of the manner in which the offices are classified.
According to the District Court, the classification system cannot survive equal protection scrutiny,
because Texas has failed to explain sufficiently why some elected public officials are subject to § 65 and
why others are not. As with the case of § 19, we conclude that § 65 survives a challenge under the
Equal Protection Clause unless appellees can show that there is no rational predicate to the classification
scheme.

The history behind § 65 shows that it may be upheld consistent with the "one step at a time" approach
that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than
that sanctioned by the traditional principles . Section 65 was enacted in 1954 as a transitional provision
applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the
provision from two to four years. The provision also staggered the terms of other offices so that at least
some county and local offices would be contested at each election. The automatic resignation proviso to
§ 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art.
XI, § 11, which applies to officeholders in home rule cities who serve terms longer than two years.
Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up
to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958.
That the State did not go further in applying the automatic resignation provision to those officeholders
whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not the sort of
malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is
not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection
Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office
unless and until it places similar restrictions on other officeholders. The provision's language and its
history belie any notion that § 65 serves the invidious purpose of denying access to the political process
to identifiable classes of potential candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval
of restrictions on the right of public employees to become candidates for public office" out of context. A
correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of
that case, as each equal protection challenge would necessarily have to involve weighing governmental
interests vis-Ã -vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are unquestionably entitled
to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to
imply that public employees may be prohibited from expressing their private views on controversial
topics in a manner that does not interfere with the proper performance of their public duties. In today's
decision, there is no blanket approval of restrictions on the right of public employees to become
candidates for public office. Nor do we approve any general restrictions on the political and civil rights of
judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A
requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears
a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or
appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees
of free expression and association nor the fourteenth amendment's guarantee of equal protection of the
laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment positions
require restrictions on partisan political activities and which may be left unregulated. And a State can
hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations
omitted)

V.

Section 4(a) of Resolution 8678, Section 13 of RA 9369,

and Section 66 of the Omnibus Election Code

Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being
overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due
regard for the type of position being held by the employee seeking an elective post and the degree of
influence that may be attendant thereto; [79] and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions
without due regard for the type of office being sought, whether it be partisan or nonpartisan in character,
or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of

Incumbent Appointive Official's Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they apply
indiscriminately to all civil servants holding appointive posts, without due regard for the type of position
being held by the employee running for elective office and the degree of influence that may be attendant
thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when the
incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government
posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse
perpetuated by a "powerful political machine" that has amassed "the scattered powers of government
workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power."
[80] As elucidated in our prior exposition: [81]

Attempts by government employees to wield influence over others or to make use of their respective
positions (apparently) to promote their own candidacy may seem tolerable - even innocuous -
particularly when viewed in isolation from other similar attempts by other government employees. Yet it
would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility
that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an
emerging central party structure to advance its own agenda through a "carefully orchestrated use of
[appointive and/or elective] officials" coming from various levels of the bureaucracy.

...[T]he avoidance of such a "politically active public work force" which could give an emerging political
machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the
candidacies of all appointive public officials without further distinction as to the type of positions being
held by such employees or the degree of influence that may be attendant thereto. (citations omitted)

ii. Limitation on Candidacy

Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they are
made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the
type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the
temptations it fosters are sufficiently different from those involved in an office removed from regular
party politics [so as] to warrant distinctive treatment," [82] so that restrictions on candidacy akin to
those imposed by the challenged provisions can validly apply only to situations in which the elective
office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude
even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as
overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that the
alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated,
viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein
refer to the filing of certificates of candidacy and nomination of official candidates of registered political
parties, in connection with the May 10, 2010 National and Local Elections.

[83] Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678,
were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be
noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010
National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is
clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in
conjunction with other related laws on the matter, will confirm that these provisions are likewise not
intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay offices, since
these are the only elections in this country which involve nonpartisan public offices.

[84]

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in
1985, Congress has intended that these nonpartisan barangay elections be governed by special rules,
including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election
Code. Said provision states:

Section 39. Certificate of Candidacy. - No person shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the
commencement of the election period but not later than the day before the beginning of the campaign
period in a form to be prescribed by the Commission. The candidate shall state the barangay office for
which he is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil
or military service, including those in government-owned or-controlled corporations, shall be considered
automatically resigned upon the filing of certificate of candidacy for a barangay office .

Since barangay elections are governed by a separate deemed resignation rule, under the present state of
law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus
Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a
partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus
Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. [85]

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also
to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we
explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received
judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that
the government has an interest in regulating the conduct and speech of its employees that differs
significantly from those it possesses in connection with regulation of the speech of the citizenry in
general. [86]
Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly
broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth
must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.
[87]

In operational terms, measuring the substantiality of a statute's overbreadth would entail, among other
things, a rough balancing of the number of valid applications compared to the number of potentially
invalid applications. [88] In this regard, some sensitivity to reality is needed; an invalid application that is
far-fetched does not deserve as much weight as one that is probable.

[89] The question is a matter of degree.[90] Thus, assuming for the sake of argument that the partisan-
nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is
susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or
provide this Court with some idea of the number of potentially invalid elections (i.e. the number of
elections that were insulated from party rivalry but were nevertheless closed to appointive employees)
that may in all probability result from the enforcement of the statute. [91]

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of
Magill v. Lynch , indeed, such a step is not to be taken lightly, much less to be taken in the dark,[92]
especially since an overbreadth finding in this case would effectively prohibit the State from `enforcing an
otherwise valid measure against conduct that is admittedly within its power to proscribe.' [93]

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of
the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the
exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be
used sparingly, and only as a last resort. [94]

In the United States, claims of facial overbreadth have been entertained only where, in the judgment of
the court, the possibility that protected speech of others may be muted and perceived grievances left to
fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to
society in allowing some unprotected speech or conduct to go unpunished.[95] Facial overbreadth has
likewise not been invoked where a limiting construction could be placed on the challenged statute, and
where there are readily apparent constructions that would cure, or at least substantially reduce, the
alleged overbreadth of the statute. [96]
In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in
office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably
protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.

In this light, the conceivably impermissible applications of the challenged statutes - which are, at best,
bold predictions - cannot justify invalidating these statutes in toto and prohibiting the State from
enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its
power and interest to proscribe. [97] Instead, the more prudent approach would be to deal with these
conceivably impermissible applications through case-by-case adjudication rather than through a total
invalidation of the statute itself.[98]

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already
filed their Certificates of Candidacy without relinquishing their posts. [99] Several COMELEC election
officers had likewise filed their Certificates of Candidacy in their respective provinces. [100] Even the
Secretary of Justice had filed her certificate of substitution for representative of the first district of
Quezon province last December 14, 2009[101] - even as her position as Justice Secretary includes
supervision over the City and Provincial Prosecutors,[102] who, in turn, act as Vice-Chairmen of the
respective Boards of Canvassers.[103] The Judiciary has not been spared, for a Regional Trial Court Judge
in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral
playing field in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369,
which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent's and the intervenors' Motions for
Reconsideration; REVERSE and SET ASIDE this Court's December 1, 2009 Decision; DISMISS the Petition;
and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution
No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3)
Section 66 of the Omnibus Election Code.

SO ORDERED.
 [G.R. No. 193773, April 02, 2013] TERESITA L. SALVA, Petitioner, v. FLAVIANA M. VALLE,
Respondent.

DECISION

VILLARAMA, JR., J.:

Assailed in this petition for review on certiorari under Rule 45 is the Decision 1 dated August 25, 2010 of
the Court of Appeals (CA) in CA-G.R. SP No. 103622.

The facts leading to the present controversy, as summarized by the CA:

On June 11, 2004, petitioner Teresita L. Salva (petitioner hereafter), President of Palawan State
University (PSU), issued Office Order No. 061 reassigning four (4) PSU faculty members of the College of
Arts and Humanities to various Extramural Studies Centers. She assigned respondent Flaviana M. Valle
(respondent hereafter) at Brooke’s Point, Palawan.

In a letter dated June 17, 2004, respondent informed petitioner that her net take home pay is only
P378.66 per month and that she needed financial assistance in the total amount of P5,100.00 to support
her stay at Brooke’s Point. Pending the approval of her request, respondent asked that she be allowed to
report to the main campus. But, it appears that as early as respondent’s receipt of the reassignment
order, her teaching load or subjects in the main campus were already distributed to other faculty
members.

When respondent did not report to her new assignment, petitioner issued a memorandum directing
respondent to explain in writing within seventy two (72) hours why no disciplinary action should be
taken against her. Respondent stated that upon approval of her request for financial assistance, she will
immediately report to her new place of assignment. On June 25, 2004, respondent received an
endorsement approving her travel expenses.

On June 30, 2004, William M. Herrera, Director of PSU-Brooke’s Point, informed petitioner that
respondent merely reported for two to three hours on June 15, 2004 and did not return since then. Thus,
petitioner issued another memorandum directing respondent to explain within 72 hours why she should
not be administratively charged with insubordination for failure to comply with the order of
reassignment (Office Order No. 061). Again, respondent declared that her failure to report to her new
station was due to her poor financial status.
Finding respondent’s explanation unsatisfactory, petitioner issued Administrative Order No. 001 dated
July 5, 2004 imposing upon respondent the penalty of one (1) month suspension from office without pay.
Respondent’s motion for reconsideration was denied.

When respondent’s suspension expired, on August 5, 2004, petitioner issued another memorandum
directing respondent to immediately report at Brooke’s Point. Petitioner informed respondent that she,
her husband and minor children are entitled to traveling and freight expenses. Respondent filed another
motion for reconsideration stressing that her relocation would result in financial distress to her family.
Again, she requested that she remain at the main campus.

Petitioner issued another memorandum directing respondent to explain within 72 hours why she should
not be administratively charged with insubordination. Instead of tendering an explanation, respondent
sent petitioner a letter dated August 30, 2004 stating that she has appealed petitioner’s order of
reassignment and suspension to the PSU Board of Regents. She requested for the deferment of any action
against her. However, petitioner claimed that respondent failed to furnish her a copy of the notice of
appeal. Thus, on September 13, 2004, petitioner issued Administrative Order No. 003 finding respondent
guilty of insubordination for the second time and imposing upon her the supreme penalty of dismissal
from service. When reconsideration was denied, respondent appealed to the PSU Board seeking
nullification of petitioner’s orders. She argued that she was unceremoniously dismissed without cause
and due process and that her dismissal was flawed due to procedural infirmities such as lack of formal
complaint and hearing.

Finding petitioner’s actions in order, the PSU Board, in a Resolution dated November 17, 2004, confirmed
petitioner’s orders, to wit: (1) Office Order No. 061 reassigning respondent to Brooke’s Point; (2)
Administrative Order No. 001 suspending her for a month; and (3) Administrative Order No. 003
terminating her from service with cancellation of eligibility, forfeiture of leave credits and retirement
benefits and disqualification from government service.

On December 13, 2004, respondent received her copy of the PSU Board’s decision confirming the orders
issued by petitioner. As the PSU Board Resolution dated November 17, 2004 was allegedly unsigned,
respondent wrote a letter dated January 7, 2005 to Rev. Fr. Rolando V. Dela Rosa, O.P., the Chairman of
the PSU Board and Commission on Higher Education (CHED). She sought to clarify whether the resolution
was already approved in a referendum and whether the PSU Board intended to release the said
resolution.

On February 18, 2005, respondent was furnished a copy of the PSU Board referendum [dated December
6, 2004] which approved and formalized the November 17, 2004 Resolution. Subsequently, on May 6,
2005, respondent received the CHED memoranda dated November 16, 2004 and February 11, 2005
stating that due process was not observed. The CHED, then, recommended the deferment of the dismissal
order to give way to the proper observance of the rules of procedure. When the PSU Board did not act on
the said recommendation, on July 14, 2005 or almost five (5) months from her receipt of the referendum,
respondent filed her Memorandum of Appeal to the CSC. 2

On July 3, 2007, the Civil Service Commission (CSC) issued Resolution No. 071255 3 granting
respondent’s appeal, as follows:

WHEREFORE, the appeal of Flaviana M. Valle, Palawan State University, is hereby GRANTED. Accordingly,
the instant case is hereby REMANDED to the Palawan State University, Puerto Princesa City, Palawan, for
the issuance of the required formal charge, if the evidence so warrants, and thereafter to proceed with
the formal investigation of the case. The formal investigation should be completed within three (3)
calendar months from the date of receipt of the records from the Commission. Within fifteen (15) days
from the termination of the investigation, the disciplining authority shall render its decision, otherwise,
the Commission shall vacate and set aside the appealed decision and declare respondent exonerated from
the charge.

The Director IV of the Civil Service Commission Regional Office No. IV, Panay Avenue, Quezon City, is
hereby directed to monitor the implementation of this Resolution and submit a report to the Commission.
4

The CSC found that respondent was not afforded due process as there was no formal charge issued
against her before she was adjudged guilty of insubordination and meted the penalty of dismissal.
Petitioner filed a motion for reconsideration5 but the CSC denied it under Resolution No. 080582 6 dated
April 10, 2008.

Dissatisfied, petitioner filed a petition for review under Rule 43 in the CA. By Decision dated August 25,
2010, the CA sustained the ruling of the CSC.

Hence, this petition alleging that –

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENT WAS DISMISSED
FROM THE SERVICE WITHOUT THE REQUISITE FORMAL CHARGE

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE CIRCUMSTANCES SURROUNDING
RESPONDENT’S DISMISSAL FROM THE SERVICE WERE SHORT OF SUBSTANTIAL COMPLIANCE WITH
THE DUE PROCESS REQUIREMENTS 7
Petitioner argues that the requisite formal charge had been duly complied through her issuance of
memorandum orders which were in the nature of a formal charge contemplated under the civil service
rules. With these memoranda, respondent was apprised of the offense she had committed and afforded
her the opportunity to ventilate within a period of 72 hours from receipt of the same the reasons why she
should not be held liable for such offense. Petitioner asserts that subsequent issuance of another directive
captioned “formal charge” would have been an exercise in redundancy that would serve no purpose other
than to unduly prolong the administrative proceeding, which could not be the intendment of the rules.
Moreover, respondent’s “[participation] in the administrative proceedings initiated against her by the
Petitioner x x x likewise x x x supports the stance that proper administrative charges were initiated
against her and militates [against respondent’s] contention that due process was not accorded her.”

We disagree.

A formal charge issued prior to the imposition of administrative sanctions must conform to the
requirements set forth in Section 16, Rule II of the Uniform Rules on Administrative Cases in the Civil
Service9 (URACCS), which reads:

SEC. 16. Formal Charge. – After a finding of a prima facie case, the disciplining authority shall formally
charge the person complained of. The formal charge shall contain a specification of charge(s), a brief
statement of material or relevant facts, accompanied by certified true copies of the documentary
evidence, if any, sworn statements covering the testimony of witnesses, a directive to answer the
charge(s) in writing under oath in not less than seventy-two (72) hours from receipt thereof, an advice
for the respondent to indicate in his answer whether or not he elects a formal investigation of the
charge(s), and a notice that he is entitled to be assisted by a counsel of his choice.

If the respondent has submitted his comment and counter-affidavits during the preliminary investigation,
he shall be given the opportunity to submit additional evidence.

The disciplining authority shall not entertain requests for clarification, bills of particulars or motions to
dismiss which are obviously designed to delay the administrative proceedings. If any of these pleadings
are interposed by the respondent, the same shall be considered as an answer and shall be evaluated as
such.

We have held that if the purported “formal charge” does not contain the foregoing, it cannot be said that
the employee concerned has been formally charged. 10 Thus:
Citing CSC Resolution No. 99-1936 entitled “Uniform Rules on Administrative Cases in the Civil Service,”
particularly Section 16 thereof on the requirement of a formal charge in investigations, the appellate
court correctly ruled that:

As contemplated under the foregoing provision, a formal charge is a written specification of the charge(s)
against an employee. While its form may vary, it generally embodies a brief statement of the material and
relevant facts constituting the basis of the charge(s); a directive for the employee to answer the charge(s)
in writing and under oath, accompanied by his/her evidence; and advice for the employee to indicate in
his/her answer whether he/she elects a formal investigation; and a notice that he/she may secure the
assistance of a counsel of his/her own choice. A cursory reading of the purported formal charge issued to
Manahan shows that the same is defective as it does not contain the abovementioned statements, and it
was not issued by the proper disciplining authority. Hence, under the foregoing factual and legal milieu,
Manahan is not deemed to have been formally charged.

Reference to CSC Resolution No. 99-1936 is proper, being the law applicable to formal charges in the civil
service prior to the imposition of administrative sanctions. The requirements under Section 16 thereof
are clear x x x.11

The Memorandum dated August 24, 2004 issued by petitioner to respondent prior to Administrative
Order No. 00312 dated September 13, 2004 imposing on her the penalty of dismissal, is therefore
defective as it did not contain the statements required by Section 16 of the URACCS:

August 24, 2004

MEMORANDUM

TO: Asst. Prof. Flaviana M. Valle

This University

Subject: Administrative Case For Insubordination

You are hereby directed to explain within 72 hours from receipt hereof why no disciplinary action be
taken against you for the administrative offense of Insubordination for your failure and/or refusal to
comply with Memorandum Order dated August 5, 2004 requiring you to report to the PSU Extramural
Studies Center at Brooke’s Point, Palawan where you were reassigned as a faculty member. As per
written report dated August 19, 2004 of Director William M. Herrera, you have not yet reported for work
to the said center.
(SGD.)

TERESITA L. SALVA

President 13

As to the “administrative proceedings” mentioned by petitioner, wherein respondent supposedly

participated, we find that it consists merely of the written explanation submitted by respondent in
compliance with the memorandum of petitioner. Such explanation considered as answer/comment is
different from the answer that may be later filed by respondent during the formal investigation.
Evidently, the petitioner failed to substantially comply not only with the requisite formal charge, but also
with the other requirements under CSC Resolution No. 991936 concerning the procedure for the conduct
of an administrative investigation. In fact, there was no formal investigation conducted at all prior to the
issuance of Administrative Order No. 003 dismissing respondent from the service.

In Garcia v. Molina ,14 we declared the formal charges issued by petitioner Government Service
Insurance System President without prior conduct of a preliminary investigation as null and void. In this
case, while respondent was given the opportunity to submit a written explanation (not a preliminary
investigation proper 15), she was not formally charged, and no formal investigation had been conducted
before the petitioner rendered her decision to dismiss the respondent (Administrative Order No. 003), as
required by the civil service rules.

Section 22 of the URACCS provides:

SEC. 22. Conduct of Formal Investigation. – Although the respondent does not request a formal
investigation, one shall nevertheless be conducted by the disciplining authority where from the
allegations of the complaint and the answer of the respondent, including the supporting documents of
both parties, the merits of the case cannot be decided judiciously without conducting such investigation.

The investigation shall be held not earlier than five (5) days nor later than ten (10) days from receipt of
the respondent’s answer. Said investigation shall be finished within thirty (30) days from the issuance of
the formal charge or the receipt of the answer unless the period is extended by the disciplining authority
in meritorious cases.

For this purpose, the Commission may entrust the formal investigation to lawyers of other agencies
pursuant to Section 79.

Respondent had raised the issue of non-observance of due process in her appeal to the Board of Regents
(BOR), in particular, that petitioner did not give her “the benefit of hearing required by law for her to
refute or present witnesses and to adduce evidence for her defense to fully air her side” and “every
assistance” including legal representation which she considered indispensable for the full protection of
her rights in view of the possible loss of her only source of livelihood. 16 The BOR, however maintained
that a formal hearing was dispensed with for being unnecessary since the records of the case sufficiently
provided the bases for respondent’s liability for insubordination.

Such wanton disregard of the proper procedure in administrative investigations under the civil service
rules cannot be countenanced. For a valid dismissal from the government service, the requirements of
due process must be complied with. Indeed, even the filing by respondent of a motion for reconsideration
of the decision to dismiss her could not have cured the violation of her right to due process.

Without a formal charge and proper investigation on the charges imputed on the respondent, the
respondent did not get the chance to sufficiently defend herself; and more importantly, the petitioner, the
CSC and the courts could not have had the chance to reasonably ascertain the truth which the CSC rules
aim to accomplish. 18 It is to be noted that respondent had repeatedly requested the petitioner to
reconsider the reassignment order because of the financial hardship it would cause her family, explaining
that her meager take-home pay was due to the loans she previously availed to finance her post-graduate
(master’s degree) studies. Respondent should have been given the opportunity to prove her defenses
against the charge of insubordination and present evidence to refute petitioner’s claim that her
reassignment was reasonable, necessary and not impelled by improper considerations.

We quote with approval the following findings and observations of the appellate court:

To begin with, petitioner’s memorandum dated August 24, 2004 contained no indication that her failure
to explain or abide by her reassignment could result to her dismissal; hence, respondent was not
properly apprised of the severity of the charge to intelligently prepare for her defenses. And, even if We
were to construe petitioner’s memorandum as a complaint or a formal charge, still, the circumstances
surrounding respondent’s dismissal were short of substantial compliance with due process
requirements. A perusal of the minutes during the PSU Board meetings reveal that the issues of lack of a
formal charge, notice and answer after a formal charge, and a hearing committee to allow respondent to
be heard were timely raised. But, the PSU Board agreed to decide respondent’s appeal because the
records were allegedly sufficient to show her liability for insubordination.

On the contrary, further examination of the minutes of the PSU Board meetings shows that respondent’s
repeated failure to report to her new assignment was not the sole factor which was considered for her
alleged acts of insubordination. It was more of respondent’s attacks on petitioner and the administration
through the radio or media and her attempts to organize rallies that prompted the PSU Board to hasten
their confirmation of the order of her dismissal without appropriate proceedings. In fact, the PSU Board
issued Resolution No. 45 strictly enjoining respondent “to desist from inciting other members of the
community to any protest action against the University or the University President.” Moreover, petitioner
brought up in the board meeting that there have been some cases of insubordination on the part of
respondent regarding the giving of departmental examinations and complaints from some students
regarding collections of money.

Indeed, respondent had a right to present evidence which, to say the least, could have blunted the effects
of the PSU Board’s decision. She could have shown that her failure to comply with her reassignment
order was in good faith and not willful or intentional. 19

Given the serious violation of respondent’s right to due process, no reversible error was committed by
the CA in upholding the CSC ruling granting respondent’s appeal and remanding the case to the PSU for
the conduct of proper administrative investigation.

Petitioner nonetheless faults the CA in not holding that respondent’s appeal was filed with the CSC
beyond the reglementary period provided in Section 43,20 Rule III of the URACCS. She points out that
whether the reglementary period for appeal be reckoned from December 13, 2004 – the date when
respondent received the BOR Resolution Nos. 44 and 51, series of 2004 and the Resolution dismissing her
appeal – or on February 18, 2005 – the date when respondent received a copy of the Referendum of the
BOR dated December 6, 2004 approving BOR Resolution dated November 17, 2004 confirming
respondent’s reassignment, suspension and dismissal, and dismissing the appeals she filed, it is clear that
respondent’s appeal with the CSC filed in July 2005 is patently beyond the reglementary period of appeal.

We hold that the CA correctly upheld the CSC in giving due course to respondent’s belated appeal. This
Court has allowed the liberal application of rules of procedure for perfecting appeals in exceptional
circumstances to better serve the interest of justice.

In this case, the CSC found respondent’s appeal as meritorious and that delay in filing her appeal was
excusable in view of her pending query with the Commission on Higher Education (CHED) and the time
she waited in vain for the BOR to act on CHED’S subsequent recommendation 22 to defer the
implementation of the dismissal order against respondent. Thus:

As to movant’s assertion that Valle’s appeal was filed beyond the reglementary fifteen-day period to
appeal, records clearly show that upon receipt of the unsigned Resolution of the PSU Board of Regents
confirming the reassignment and dismissal orders, Valle immediately wrote a letter to the Chairman of
the PSU Board of Regents and the Chairman of the Commission on Higher Education (CHED), inquiring
whether the said Resolution was already approved and intended by the PSU to be released. On February
18, 2005, Valle was furnished a copy of the Referendum dated December 6, 2004 of the PSU Board of
Regents, officially confirming her dismissal from the service. Subsequently, on May 6, 2005, Valle
received the Memoranda dated November 16, 2004 and February 11, 2005 of the CHED stating that the
PSU should defer the implementation of the dismissal order and instead, issue a formal charge against
Valle and that without the Referendum of the Board of Regents approving the unsigned Resolution, the
same has no legal effect. On July 14, 2005, after waiting for the PSU Board of Regents to calendar her case
following the opinion rendered by the CHED, Valle filed her appeal with the Commission. From the above
factual antecedents, it cannot be said that Valle’s delay in filing her appeal with the Commission was
intentional or deliberate. On the contrary, it was excusable as she was waiting for the PSU Board of
Regents to act on her case pursuant to the CHED Memoranda. However, no action was forthcoming from
the PSU, thus she elevated the case to the Commission. x x x x

In Commission on Appointments v. Paler,24 this Court likewise sustained the CSC when it entertained a
belated appeal in the interest of substantial justice. We thus held:

We agree with the CSC. We uphold its decision to relax the procedural rules because Paler’s appeal was
meritorious. This is not the first time that the Court has upheld such exercise of discretion. In

Rosales, Jr. v. Mijares involving Section 49(a) of the CSC Revised Rules of Procedure, the Court ruled:

On the contention of the petitioner that the appeal of the respondent to the CSC was made beyond the
period therefor under Section 49(a) of the CSC Revised Rules of Procedure, the CSC correctly ruled that:

Movant claims that Mijares’ appeal was filed way beyond the reglementary period for filing appeals. He,
thus, contends that the Commission should not have given due course to said appeal.

The Commission need not delve much on the dates when Mijares was separated from the service and
when he assailed his separation.

Suffice it to state that the Commission found his appeal meritorious. This being the case, procedural rules
need not be strictly observed. This principle was explained by in the case of

Mauna vs. CSC , 232 SCRA 388, where the Supreme Court ruled, to wit:

“Assuming for the sake of argument that the petitioner’s appeal was filed out of time, it is within the
power of this Court to temper rigid rules in favor of substantial justice. While it is desirable that the Rules
of Court be faithfully and even meticulously observed, courts should not be so strict about procedural
lapses that do not really impair the proper administration of justice. If the rules are intended to ensure
the orderly conduct of litigation, it is because of the higher objective they seek which is the protection of
substantive rights of the parties . As held by the Court in a number of cases:

xxx

It bears stressing that the case before the CSC involves the security of tenure of a public officer
sacrosanctly protected by the Constitution. Public interest requires a resolution of the merits of the
appeal instead of dismissing the same based on a strained and inordinate application of Section 49(a) of
the CSC Revised Rules of Procedure.” (Emphasis supplied)

Constantino-David v. Pangandaman-Gania likewise sustained the CSC when it modified an otherwise final
and executory resolution and awarded backwages to the respondent, in the interest of justice and fair
play. The Court stated –

“No doubt, the Civil Service Commission was in the legitimate exercise of its mandate under Sec. 3, Rule I,
of the Revised Uniform Rules on Administrative Cases in the Civil Service that “[a]dministrative
investigations shall be conducted without necessarily adhering strictly to the technical rules of procedure
and evidence applicable to judicial proceedings.” This authority is consistent with its powers and
functions to “[p]rescribe, amend and enforce rules and regulations for carrying into effect the provisions
of the Civil Service Law and other pertinent laws” being the central personnel agency of the Government.

Furthermore, there are special circumstances in accordance with the tenets of justice and fair play that
warrant such liberal attitude on the part of the CSC and a compassionate like-minded discernment by this
Court. x x x”25 (Citations omitted.)

More importantly, the denial of the fundamental right to due process in this case being apparent, the
dismissal order issued by petitioner in disregard of that right is void for lack of jurisdiction. 26 The
cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from
their jurisdiction. The violation of a party’s right to due process raises a serious jurisdictional issue which
cannot be glossed over or disregarded at will. 27 It is well-settled that a decision rendered without due
process is void ab initio and may be attacked at anytime directly or collaterally by means of a separate
action, or by resisting such decision in any action or proceeding where it is invoked. 28cralawvllred

WHEREFORE , the petition for review on certiorari is DENIED , for lack of merit. The Decision dated
August 25, 2010 of the Court of Appeals in CA-G.R. SP No. 103622 is AFFIRMED .

No pronouncement as to costs.

SO ORDERED.
 [G.R. No. 157383 : August 18, 2010] WINSTON F. GARCIA, IN HIS CAPACITY AS PRESIDENT AND
GENERAL MANAGER OF GSIS, PETITIONER, VS. MARIO I. MOLINA AND ALBERT M. VELASCO,
RESPONDENTS

[G.R. No. 174137] WINSTON F. GARCIA, IN HIS CAPACITY AS PRESIDENT AND GENERAL MANAGER
OF THE GOVERNMENT SERVICE INSURANCE SYSTEM, PETITIONER, VS. MARIO I. MOLINA AND
ALBERT M. VELASCO, RESPONDENTS.

DECISION

NACHURA, J.:

Before the Court are two consolidated petitions filed by Winston F. Garcia (petitioner) in his capacity as
President and General Manager of the Government Service Insurance System, or GSIS, against
respondents Mario I. Molina (Molina) and Albert M. Velasco (Velasco). In G.R. No. 157383, petitioner
assails the Court of Appeals (CA) Decision [1] dated January 2, 2003 and Resolution

[2] dated March 5, 2003 in CA-G.R. SP No. 73170. In G.R. No. 174137, petitioner assails the CA Decision
[3] dated December 7, 2005 and Resolution [4] dated August 10, 2006 in CA-G.R. SP No. 75973.

The factual and procedural antecedents of the case are as follows:

Respondents Molina and Velasco, both Attorney V of the GSIS, received two separate Memoranda [5]
dated May 23, 2002 from petitioner charging them with grave misconduct. Specifically, Molina was
charged for allegedly committing the following acts: 1) directly and continuously helping some alleged
disgruntled employees to conduct concerted protest actions and/or illegal assemblies against the
management and the GSIS President and General Manager; 2) leading the concerted protest activities
held in the morning of May 22, 2002 during office hours within the GSIS compound; and 3) continuously
performing said activities despite warning from his immediate superiors. [6] In addition to the charge for
grave misconduct for performing the same acts as Molina, Velasco was accused of performing acts in
violation of the Rules on Office Decorum for leaving his office without informing his supervisor of his
whereabouts; and gross insubordination for persistently disregarding petitioner's instructions that
Velasco should report to the petitioner's office. [7] These acts, according to petitioner, were committed in
open betrayal of the confidential nature of their positions and in outright defiance of the Rules and
Regulations on Public Sector Unionism. In the same Memoranda, petitioner required respondents to
submit their verified answer within seventy two (72) hours. Considering the gravity of the charges
against them, petitioner ordered the preventive suspension of respondents for ninety (90) days without
pay, effective immediately. [8] The following day, a committee was constituted to investigate the charges
against respondents.

In their Answer[9] dated May 27, 2002, respondents denied the charges against them. Instead, they
averred that petitioner was motivated by vindictiveness and bad faith in charging them falsely. They
likewise opposed their preventive suspension for lack of factual and legal basis. They strongly expressed
their opposition to petitioner acting as complainant, prosecutor and judge.

On May 28, 2002, respondents filed with the Civil Service Commission (CSC) an Urgent Petition to Lift
Preventive Suspension Order.[10] They contended that the acts they allegedly committed were
arbitrarily characterized as grave misconduct. Consistent with their stand that petitioner could not act as
the complainant, prosecutor and judge at the same time, respondents filed with the CSC a Petition to
Transfer Investigation to This Commission. [11]

Meanwhile, the GSIS hearing officer directed petitioners to submit to the jurisdiction of the investigating
committee and required them to appear at the scheduled hearing. [12]

Despite their urgent motions, the CSC failed to resolve respondents' motions to lift preventive suspension
order and to transfer the case from the GSIS to the CSC.

On October 10, 2002, respondents filed with the CA a special civil action for certiotari and prohibition
with prayer for Temporary Restraining Order (TRO). [13] The case was docketed as CA-G.R. SP No.
73170. Respondents sought the annulment and setting aside of petitioner's order directing the former to
submit to the jurisdiction of the committee created to hear and investigate the administrative case filed
against them. They likewise prayed that petitioner (and the committee) be prohibited from conducting
the scheduled hearing and from taking any action on the aforesaid administrative case against
respondents.

On January 2, 2003, the CA rendered a decision [14] in favor of respondents, the dispositive portion of
which reads:

ACCORDINGLY , the petition is hereby GRANTED. Public respondents are hereby PERPETUALLY
RESTRAINED from hearing and investigating the administrative case against petitioners, without
prejudice to pursuing the same with the Civil Service Commission or any other agency of government as
may be allowed for (sic) by law.

SO ORDERED. [15]
The CA treated the petition as one raising an issue of gnawing fear, and thus agreed with respondents
that the investigation be made not by the GSIS but by the CSC to ensure that the hearing is conducted
before an impartial and disinterested tribunal.

Aggrieved, petitioner comes before the Court in this petition for review on certiorari under Rule 45 of the
Rules of Court, raising the following issues:

I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE
PETITIONERS ABUSED THEIR AUTHORITY AND HAVE BEEN PARTIAL IN REGARD TO THE
ADMINISTRATIVE CASES AGAINST THE RESPONDENTS; AND IN PERPETUALLY RESTRAINING THE
PETITIONERS FROM HEARING AND INVESTIGATING THE ADMINISTRATIVE CASES FILED AGAINST THE
RESPONDENTS - SOLELY ON THE BASIS OF THE TOTALLY UNFOUNDED ALLEGATIONS OF THE
RESPONDENTS THAT THE PETITIONERS ARE PARTIAL AGAINST THEM.

II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FAILING TO
APPRECIATE AND APPLY THE PRINCIPLE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES AND THE
RULE ON NON FORUM SHOPPING IN PERPETUALLY RESTRAINING THE PETITIONERS FROM HEARING
AND INVESTIGATING THE ADMINISTRATIVE CASES AGAINST THE RESPONDENTS.

III. WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RENDERING A
DECISION WHICH IS CONTRARY TO AND COMPLETELY DISREGARDS APPLICABLE JURISPRUDENCE
AND WHICH, IN VIOLATION OF THE RULES OF COURT, DOES NOT CLEARLY STATE THE FACTS AND THE
LAW ON WHICH IT IS BASED. [16]

In the meantime, on February 27, 2003, the CSC resolved respondents' Petition to Lift Order of
Preventive Suspension and Petition to Transfer Investigation to the Commission through Resolution No.
03-0278, [17] the dispositive portion of which reads:

WHEREFORE, the Commission hereby rules that:

1. The Urgent Petition to Lift the Order of Preventive Suspension is hereby DENIED for having become
moot and academic.

2. The Petition to Transfer Investigation to the Commission is likewise DENIED for lack of merit.
Accordingly, GSIS President and General Manager Winston F. Garcia is directed to continue the conduct of
the formal investigation of the charges against respondents-petitioners Albert Velasco and Mario I.
Molina. [18]
As to the lifting of the order of preventive suspension, the CSC considered the issue moot and academic
considering that the period had lapsed and respondents had been allowed to resume their specific
functions. This notwithstanding, the CSC opted to discuss the matter by way of obiter dictum . Without
making a definitive conclusion as to the effect thereof in the case against respondents, the CSC declared
that a preliminary investigation is a pre-requisite condition to the issuance of a formal charge.[19]

On the requested transfer of the investigation from the GSIS to the CSC, the latter denied the same for lack
of merit. The Commission concluded that the fact that the GSIS acted as the complainant and prosecutor
and eventually the judge does not mean that impartiality in the resolution of the case will no longer be
served.

[20]

Aggrieved, respondents appealed to the CA through a Petition for Review under Rule 43 of the Rules of
Court.[21] The case was docketed as CA-G.R. SP NO. 75973.

On December 7, 2005, the CA rendered a Decision

[22] in favor of respondents, the dispositive portion of which reads:

PREMISES CONSIDERED, the petition is hereby GRANTED . The formal charges filed by the President and
General Manager of the GSIS against petitioners, and necessarily, the order of preventive suspension
emanating therefrom, are declared NULL AND VOID. The GSIS is hereby directed to pay petitioners' back
salaries pertaining to the period during which they were unlawfully suspended. No pronouncement as to
costs.

SO ORDERED. [23]

The CA declared null and void respondents' formal charges for lack of the requisite preliminary
investigation. In view thereof, the CA disagreed with the CSC that the question on the propriety of the
preventive suspension order had become moot and academic. Rather, it concluded that the same is
likewise void having emanated from the void formal charges. Consequently, the CA found that
respondents were entitled to back salaries during the time of their illegal preventive suspension.

Hence, the present petition raising the following issues:

I. WHETHER THE RESPONDENTS WERE FULLY ACCORDED THE REQUISITE OPPORTUNITY TO BE

HEARD, WERE IN FACT HEARD AND BEING HEARD, AND WHETHER THE CONDUCT OF PRELIMINARY
INVESTIGATION IN ADMINISTRATIVE PROCEEDINGS IS AN ESSENTIAL REQUISITE TO THE CONDUCT
OF ADJUDICATION.

II. WHETHER THE RESPONDENTS WAIVED THEIR RIGHT TO PRELIMINARY INVESTIGATION.

III. WHETHER PRELIMINARY INVESTIGATION IS REQUIRED IN INDICTMENTS IN FLAGRANTI , AS HERE.

IV. WHETHER THE HONORABLE COURT OF APPEALS LACKED JURISDICTION, AS THE ALLEGED LACK
OF PRELIMNARY INVESTIGATION SHOULD HAVE BEEN RAISED BEFORE THE GSIS AND, THEREAFTER,
BEFORE THE CIVIL SERVICE COMMISSION, UNDER THE PRINCIPLE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES; THE GSIS HAVING ACQUIRED JURISDICTION OVER THE PERSONS OF THE
RESPONDENTS, TO THE EXCLUSION OF ALL OTHERS.

V. WHETHER THE ALLEGED LACK OF PRELIMINARY INVESTIGATION IS A NON-ISSUE.

VI. WHETHER THE PREVENTIVE SUSPENSION ORDERS ISSUED AGAINST RESPONDENTS MOLINA AND
VELASCO ARE VALID, WELL-FOUNDED AND DULY RECOGNIZED BY LAW.

VII. WHETHER PREVENTIVE SUSPENSION IS A PENALTY AND, THUS, MAY NOT BE IMPOSED WITHOUT
BEING PRECEDED BY A HEARING.

VIII. WHETHER THE RESPONDENTS ARE ENTITLED TO PAYMENT OF BACK SALARIES PERTAINING TO
THE PERIOD OF THEIR PREVENTIVE SUSPENSION.

IX. WHETHER THE INSTITUTION OF THE RESPONDENTS' PETITION BEFORE THE CIVIL SERVICE
COMMISSION WAS ENTIRELY PREMATURE.

X. WHETHER THE MISAPPREHENSIONS OF THE RESPONDENTS AS REGARDS THE PARTIALITY OF THE

GSIS COMMITTEE INVESTIGATING THE CHARGES AGAINST THEM IS BLATANTLY WITHOUT FACTUAL
BASIS.

XI. WHETHER RESPONDENTS' OBVIOUS ACT OF FORUM SHOPPING SHOULD BE COUNTENANCED BY

THIS HONORABLE COURT.

[24]

The petitions are without merit.

The civil service encompasses all branches and agencies of the Government, including government-
owned or controlled corporations (GOCCs) with original charters, like the GSIS, or those created by
special law. As such, the employees are part of the civil service system and are subject to the law and to
the circulars, rules and regulations issued by the CSC on discipline, attendance and general terms and
conditions of employment. [25] The CSC has jurisdiction to hear and decide disciplinary cases against
erring employees. In addition, Section 37 (b) of Presidential Decree No. 807 or the Civil Service Decree of
the Philippines also gives the heads of departments, agencies and instrumentalities, provinces, cities and
municipalities the authority to investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. As for the GSIS, Section 45, Republic Act (R.A.) 8291
otherwise known as the GSIS Act of 1997, specifies its disciplining authority, viz:

SECTION 45. Powers and Duties of the President and General Manager. The President and General
Manager of the GSIS shall among others, execute and administer the policies and resolutions approved by
the Board and direct and supervise the administration and operations of the GSIS. The President and
General Manager, subject to the approval of the Board, shall appoint the personnel of the GSIS, remove,
suspend or otherwise discipline them for cause, in accordance with existing Civil Service rules and
regulations, and prescribe their duties and qualifications to the end that only competent persons may be
employed.

By this legal provision, petitioner, as President and General Manager of GSIS, is vested the authority and
responsibility to remove, suspend or otherwise discipline GSIS personnel for cause.

However, despite the authority conferred on him by law, such power is not without limitations for it must
be exercised in accordance with Civil Service rules. The Uniform Rules on Administrative Cases in the
Civil Service lays down the procedure to be observed in issuing a formal charge against an erring
employee, to wit:

First, the complaint. A complaint against a civil service official or employee shall not be given due course
unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the
proper disciplining authority, the complaint need not be under oath. [27] Except when otherwise
provided for by law, an administrative complaint may be filed at anytime with the Commission, proper
heads of departments, agencies, provinces, cities, municipalities and other instrumentalities. [28]

Second, the Counter-Affidavit/Comment. Upon receipt of a complaint which is sufficient in form and
substance, the disciplining authority shall require the person complained of to submit Counter-
Affidavit/Comment under oath within three days from receipt. [29]

Third, Preliminary Investigation. A Preliminary investigation involves the ex parte examination of

records and documents submitted by the complainant and the person complained of, as well as
documents readily available from other government offices. During said investigation, the parties are
given the opportunity to submit affidavits and counter-affidavits. Failure of the person complained of to
submit his counter-affidavit shall be considered as a waiver thereof.

[30]

Fourth, Investigation Report. Within five (5) days from the termination of the preliminary investigation,
the investigating officer shall submit the investigation report and the complete records of the case to the
disciplining authority.

[31]

Fifth, Formal Charge. If a prima facie case is established during the investigation, a formal charge shall be
issued by the disciplining authority. A formal investigation shall follow. In the absence of a prima facie
case, the complaint shall be dismissed. [32]

It is undisputed that the Memoranda separately issued to respondents were the formal charges against
them. These formal charges contained brief statements of material or relevant facts, a directive to answer
the charges within seventy two (72) hours from receipt thereof, an advice that they had the right to a
formal investigation and a notice that they are entitled to be assisted by a counsel of their choice. [33]

It is likewise undisputed that the formal charges were issued without preliminary or fact-finding
investigation. Petitioner explained that no such investigation was conducted because the CSC rules did
not specifically provide that it is a pre-requisite to the issuance of a formal charge. He likewise claimed
that preliminary investigation was not required in indictments in flagranti as in this case.

We disagree.

Indeed, the CSC Rules does not specifically provide that a formal charge without the requisite preliminary
investigation is null and void. However, as clearly outlined above, upon receipt of a complaint which is
sufficient in form and substance, the disciplining authority shall require the person complained of to
submit a Counter-Affidavit/Comment under oath within three days from receipt. The use of the word
"shall" quite obviously indicates that it is mandatory for the disciplining authority to conduct a
preliminary investigation or at least respondent should be given the opportunity to comment and explain
his side. As can be gleaned from the procedure set forth above, this is done prior to the issuance of the
formal charge and the comment required therein is different from the answer that may later be filed by
respondents. Contrary to petitioner's claim, no exception is provided for in the CSC Rules. Not even an
indictment in flagranti as claimed by petitioner.
This is true even if the complainant is the disciplining authority himself, as in the present case. To comply
with such requirement, he could have issued a memorandum requiring respondents to explain why no
disciplinary action should be taken against them instead of immediately issuing formal charges. With
respondents' comments, petitioner would have properly evaluated both sides of the controversy before
making a conclusion that there was a prima facie case against respondents, leading to the issuance of the
questioned formal charges. It is noteworthy that the very acts subject of the administrative cases
stemmed from an event that took place the day before the formal charges were issued. It appears,
therefore, that the formal charges were issued after the sole determination by the petitioner as the
disciplining authority that there was a prima facie case against respondents.

To condone this would give the disciplining authority an unrestricted power to judge by himself the
nature of the act complained of as well as the gravity of the charges. We, therefore, conclude that
respondents were denied due process of law. Not even the fact that the charges against them are serious
and evidence of their guilt is - in the opinion of their superior - strong can compensate for the procedural
shortcut undertaken by petitioner which is evident in the record of this case.[34] The filing by petitioner
of formal charges against the respondents without complying with the mandated preliminary
investigation or at least give the respondents the opportunity to comment violated the latter's right to
due process. Hence, the formal charges are void ab initio and may be assailed directly or indirectly at
anytime. [35]

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted
from their jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue
which cannot be glossed over or disregarded at will. Where the denial of the fundamental right to due
process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This rule
is equally true in quasi-judicial and administrative proceedings, for the constitutional guarantee that no
man shall be deprived of life, liberty, or property without due process is unqualified by the type of
proceedings (whether judicial or administrative) where he stands to lose the same.

[36]

Although administrative procedural rules are less stringent and often applied more liberally,
administrative proceedings are not exempt from basic and fundamental procedural principles, such as
the right to due process in investigations and hearings.[37] In particular, due process in administrative
proceedings has been recognized to include the following: (1) the right to actual or constructive notice to
the institution of proceedings which may affect a respondent's legal rights; (2) a real opportunity to be
heard personally or with the assistance of counsel, to present witnesses and evidence in one's favor, and
to defend one's rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a
person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a
finding by said tribunal which is supported by substantial evidence submitted for consideration during
the hearing or contained in the records or made known to the parties affected. [38]

Petitioner contends that respondents waived their right to preliminary investigation as they failed to
raise it before the GSIS.

Again, we do not agree.

It is well-settled that a decision rendered without due process is void ab initio and may be attacked at
anytime directly or collaterally by means of a separate action, or by resisting such decision in any action
or proceeding where it is invoked.[39] Moreover, while respondents failed to raise before the GSIS the
lack of preliminary investigation, records show that in their Urgent Motion to Resolve (their Motion to
Lift Preventive Suspension Order) filed with the CSC, respondents questioned the validity of their
preventive suspension and the formal charges against them for lack of preliminary investigation.

[40] There is, thus, no waiver to speak of.

In the procedure adopted by petitioner, respondents were preventively suspended in the same formal
charges issued by the former without the latter knowing that there were pending administrative cases
against them. It is true that prior notice and hearing are not required in the issuance of a preventive
suspension order. [41] However, considering that respondents were preventively suspended in the same
formal charges that we now declare null and void, then their preventive suspension is likewise null and
void.

Lastly, the CA committed no reversible error in ordering the payment of back salaries during the period
of respondents' preventive suspension. As the administrative proceedings involved in this case are void,
no delinquency or misconduct may be imputed to respondents and the preventive suspension meted
them is baseless. Consequently, respondents should be awarded their salaries during the period of their
unjustified suspension.

[42] In granting their back salaries, we are simply repairing the damage that was unduly caused
respondents, and unless we can turn back the hands of time, we can do so only by restoring to them that
which is physically feasible to do under the circumstances. [43] The principle of "no work, no pay" does
not apply where the employee himself was unlawfully forced out of job. [44]

In view of the foregoing disquisition, we find no necessity to discuss the other issues raised by petitioner.
WHEREFORE , premises considered, the petition in G.R. No. 157383 is DENIED while the petition in G.R.
No. 174137 is DISMISSED, for lack of merit.

SO ORDERED.

Corona, C.J., Carpio, Carpio Morales, Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Perez, and Mendoza, JJ., concur.

Velasco, Jr., J., on official leave.

 RE: VEHICULAR ACCIDENT A.M. No. 2008-13-SC INVOLVING SC SHUTTLE BUS NO. 3 WITH PLATE
NO. SEG-357 DRIVEN BY GERRY B. MORAL, DRIVER II-CASUAL.

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, *CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO

MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO,
and BRION, JJ.

Promulgated:

November 19, 2008

X ---------------------------------------------------------------------------------------- X

RESOLUTION

AZCUNA, J.:

This administrative matter arose from the vehicular accident which occurred on July 7, 2008 involving
the Courts Shuttle Bus No. 3 driven by Gerry B. Moral, Driver II-Casual.

Ma. Theresa B. Andal, Legal Researcher III of the Judicial Supervision and Monitoring Division, Office of
the Court Administrator and Shuttle Bus No. 3 designated-coordinator, alleged in a sworn statement that
at around 5:40 p.m. of July 7, 2008, she and other Supreme Court employees were on board Shuttle Bus
No. 3 bound for Antipolo, Rizal. The bus was then traveling on the long stretch of the flyover of Crossing,
Shaw Boulevard, Mandaluyong City. Descending from the flyover, the bus accidentally bumped the rear
portion of a public utility jeepney with Plate No. DWA-853 on a stop on the same lane and direction. Due
to the strong impact, four passengers riding the jeepney were thrown out and injured. Three of those
passengers were just clinging to the sides of the jeepney because all seats were taken. The bus windshield
was totally wrecked and its front portion was severely damaged.

Traffic Accident Report No. 07-1759 dated July 7, 2008 stated:

Investigation conducted and as alleged by V1 driver of PUJ Jitney that he was on stop along Shaw blvd
and facing east direction because of moderate traffic thereat. At that instance, a Supreme Court shuttle
bus driven by Gerry Moral (V2) coming from behind dragged forward with unknown speed and narrated
that his driven vehicle brakes malfunction[ed] causing him V2 to accidentally hit/bump the rear end
portion of V1 by the front end portion of V2. And due to force of impact V1 surge forward same accident
tally hit/bumped the rear end portion of V3 by the front end portion of V1. And again for the third time
unaware of the incident the rear end portion of V4 Toyota Corolla driven by female driver also
hit/bumped by the front end portion of V3 Toyota Camry, which resulted damage to all four (4) vehicle.
Right after the said incident three (3) hitching passengers (male) and one female passenger inside PUJ
Jitney sustained injuries and [were] rushed to Polymedic hospital for treatment by immediate arrival of
Rescue Ambulance.

The Office of Administrative Services (OAS) stated in its Memorandum dated September 8, 2008 that one
person died due to the accident.

The matter was referred to the Shuttle Bus Committee for documentation purposes of insurance
coverage. Thereafter, Mr. Moral was directed to make his own narration of the incident.

In compliance, Mr. Moral submitted his sworn statement dated July 9, 2008 which reads:

Ako po si Gerry B. Moral, SC Shuttle Bus Driver II. Pababa po ako ng Crossing Flyover, Shaw Boulevard,
papuntang Antipolo City nang di ko inaasahan na biglang nagkaroon ng problema ang preno ng bus. Pag
apak ko ng preno, ayaw kumapit. Pag apak ko uli, wala na. . .ayaw na huminto. Ginawa ko ang lahat para
mapahinto ang bus. Naghandbrake na ako. Ang pangyayari ay tumatakbo ako ng humigit kumulang
twenty (20) to twenty-five (25) k.p.h. Gumapang po ang bus pababa ng flyover nang maghandbrake ako.
Sa kasamaang palad, inabot pa rin ang nakahinto na jeep na may nakasabit sa kanang bahagi na tatlong
pasahero. Nasira po ang bumper at salamin sa harapan ng bus. Hindi ko po kagustuhan ang aksidente.
Kung hindi lang lumusot ang preno ng bus, wala sanang namatay at nasaktan.

The OAS, as the initiatory authority to discipline shuttle bus drivers, issued a memorandum directing
some employees who were on board the bus to submit their respective statements regarding the incident
to determine the possibility of recklessness on the part of Mr. Moral as a ground for disciplinary action
against him.

The OAS summarized their statements as follows:

Mr. Rolando U. Del Rosario, Typesetter II of the Printing Services, simply concurred with the drivers
statements; Mr. Ricardo N. Lai, Jr., SC Supervising Judicial Staff Officer of the MISO stated that he was
seated at the second row of the bus. That he saw Mr. Moral flash the bus headlights as a warning while his
right foot was stepping heavily on the break pedal. He stated that the bus was running at a speed of
approximately 20 kph; Mr. Vicente L. Macafe, Jr., Chauffeur I of the Program Management Office, on the
other hand, stated that he was seated at the back of the bus driver. That while the bus was on its way
down from the flyover, he noticed that it had an accelerated speed when it hit the passenger jeepney.
Some hitching and seated passengers were injured; Mr. Joderick R. Gonzalez, Data Entry Machine
Operator, Office of ACA Villaror, submitted his statement and alleged that the bus was not in its normal
rate of speed. This was corroborated by Ms.

Estrellita R. Gonzales, Court Stenographer III, Office of the Court Administrator, who recalled that before
the accident happened the bus was purportedly traversing the flyover at high speed.

After a thorough evaluation of the statements submitted and documents gathered in relation to the
vehicular accident, the OAS, in a Memorandum dated September 8, 2008, declared that it was convinced
that the accident happened with no fault or negligence on the part of Mr. Moral. It attributed the accident
to the malfunctioning of the brake of the bus which was beyond the drivers control.

It stated:

After a thorough evaluation of the respective claims, this Office is convinced that the incident was purely
accidental with no fault or negligence on our driver so far.

As indicated in the Traffic Accident Report, the bus with unknown speed suddenly lost its brakes which
resulted to both damage to properties and injuries to victims.

This Office would like to emphasize the roadworthiness of our shuttle buses, i.e. the said bus from the
time it left the parking area in the afternoon to pick up its regular employee-passengers had perfect
functioning brakes and in good running condition until the accident. It can assure that a driver of a Courts
Shuttle Bus conducts an overall check-up on the condition of the bus he is driving.

The passengers may just have presumed that the bus was purportedly traversing at high speed because it
was descending the flyover making it difficult for Mr. Moral to control the bus due to the malfunctioning
of the brakes which is beyond his control. Neither had they any point of comparison at hand whether the
speed of the bus at that time it was descending was greater than what is reasonable. Besides, as stated in
the police report, there was a moderate traffic before the accident occurred. In doing the alleged
negligent act or recklessness, if there was any, on the part of Mr. Moral, no proof has yet been submitted
to support this allegation.

In this case, the reasonable care and caution which an ordinary prudent person would have used may be
presumed in his favor. In fact, Mr. Moral applied all means within his ability to lessen the degree of
damage to the passenger jeepney which may have resulted due to the impact of the impending collision.
What clearly happened was an accident with no fault or negligence attache[d] to Mr. Moral.
The OAS stated that Mr. Moral is a casual employee of the Court. He was hired under pertinent civil
service rules. He assumed the position of shuttle bus driver on July 1, 2008, after his appointment was
included in the approved list of casual employees hired for the period covering July to December 2008.

The OAS recommends the immediate termination of Mr. Moral on the ground of loss of trust and
confidence in him by the shuttle bus riders and that he has no security of tenure as a casual employee;
hence, his services can be terminated anytime for cause.

The issue is whether or not Mr. Moral can be terminated from his casual employment due to the vehicular
accident.

The pertinent laws applicable in this case are Sec. 2, Article IX (B) of the Constitution and Sec. 46 (a),
Chapter 7 of the Civil Service Law, thus:

Article IX (B) of the Constitution

Sec. 2. x x x

(3) No officer or employee of the civil service shall be removed or suspended except for cause provided
by law.

xxx

(6) Temporary employees of the Government shall be given such protection as may be provided by law.

The Civil Service Law

Sec. 46. Discipline: General Provisions. (a) No officer or employee in the Civil Service shall be suspended
or dismissed except for cause as provided by law after due process.

Further, Civil Aeronautics Administration v. IAC [1] held that the mantle of protection against arbitrary
dismissals is accorded to an employee even if he is a non-eligible and holds a temporary appointment.

Hence, a government employee holding a casual or temporary employment cannot be terminated within
the period of his employment except for cause.

In this case, Mr. Moral can be dismissed from employment if he is found guilty of gross neglect of duty
which is punished with dismissal under Sec. 22, Rule XIV of the Omnibus Civil Service Rules and
Regulations.
However, in the Memorandum dated September 8, 2008, OAS Chief Administrative Officer Eden T.
Candelaria stated that after a thorough evaluation of the statements and documents regarding the
vehicular accident, the OAS is convinced that the incident was purely accidental with no fault or
negligence on our driver so far. The OAS reported that there was no proof submitted that Mr. Moral was
negligent or reckless in the performance of his duty. It attributed the accident to the malfunctioning of
the brakes which was beyond the control of Mr. Moral.

Malfunction or loss of brake is not a fortuitous event. [2] Between the owner and his driver, on the one
hand, and third parties such as commuters, drivers and pedestrians, on the other, the former is presumed
to know about the condition of his vehicle and is duty bound to take care thereof with the diligence of a
good father of the family. [3]

In this case, the OAS averred that it is the shuttle bus driver who conducts an overall check-up on the
condition of the bus he is driving. It pointed out that Shuttle Bus No. 3 was roadworthy because it was in
good running condition and its brakes functioned perfectly from the time it left the parking area in the
afternoon of July 7, 2008 to pick up its regular employee-passengers until it reached the flyover of
Crossing, Shaw Boulevard, Mandaluyong City where the accident happened. According to the OAS, there
was no proof submitted showing that Mr. Moral was negligent or reckless in the performance of his duty.

In view of the lack of evidence showing gross neglect of duty on the part of Mr. Moral, the Court cannot
sustain the recommendation of OAS for the dismissal of Mr. Moral on the ground that he is merely a
casual employee. Even a casual or temporary employee enjoys security of tenure and cannot be
dismissed except for cause enumerated in Sec. 22, Rule XIV of the Omnibus Civil Service Rules and
Regulations and other pertinent laws. However, Mr. Morals services may no longer be engaged after
termination of his employment contract as a temporary employee.

Further, the Court cannot uphold the recommendation of OAS that Mr. Moral be dismissed for loss of
trust and confidence by the passengers of the bus because a driver is not a confidential employee as
defined in Civil Service Commission v. Salas, [4] thus:

The occupant of a particular position could be considered a confidential employee if the predominant
reason why he was chosen by the appointing authority was the latters belief that he can share a close
intimate relationship with the occupant which ensures freedom of discussion, without fear of
embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state.
Withal, where the position occupied is remote from that of the appointing authority, the element of trust
between them is no longer predominant.
WHEREFORE , respondent GERRY B. MORAL is RETAINED as shuttle bus driver until the end of the term
of his temporary employment in the Court, i.e ., December of 2008, unless he is earlier dismissed for
cause in another case.

SO ORDERED.