DELEGATION OF POWER
Ribo elected to
G.R. No. L-2051 May 21, 1948
BERNARDO TORRES, protestant-appellant,
vs.
MAMERTO S. RIBO and ALEJANDRO BALDERIAN, respondents-appellees.
Ramon Diokno, Mateo Canonoy, Olegario Lastrilla and Jose W. Diokno for appellant.
Antonio Montilla, Francisco Astilla and Francisco Pajao for appellees.
TUAZON, J.:
This is an appeal from the order of the Court of First Instance of Leyte dismissing a motion for a
protest for provincial governor on the alleged ground that the motion was filed out of time. The
question turns upon whether the period for filing the protest should be counted from the 22nd or
from the 24th of November, 1947. The court below used the first date as the starting point of
computation.
The pertinent facts are these: The protestant, Bernardo Torres, and the defendants, Mamerto S.
Ribo and Alejandro Balderian, were opposing candidates for provincial governor of Leyte in the
general elections held on November 11, 1947. As Mamerto S. Ribo, who was provincial
governor, and two members of the provincial board were candidates, they are disqualified to
form parts of the provincial board of canvassers of which they were to be members under section
158 of the Revised Election Code. Consequently, and in pursuance of Section 159, the
Commission on Elections, in a telegram to the provincial treasurer dated November 20 and
received on November 21 in Tacloban, Leyte, appointed the division superintendent of schools,
the district engineer and the district health officer to replace the disqualified members, with
advice that they might assume office upon receipt of their appointments. It so happened that the
division superintendent of schools and the district engineer were on that date on the west coast
of the province and did not return to Tacloban until the 24th. In the meantime, on November 22,
F. Martinez, provincial treasurer, as chairman, Gregorio Abogado, provincial fiscal, Vicente
Tizon, assistant civil engineer in the district engineer's office, Evaristo Pascual, chief clerk in the
office of the division superintendent of schools, and W. Enage, acting district health officer,
canvassed the votes for provincial governor and other officers and proclaimed "Mamerto S. Ribo
as Governor-elect." Vicente Tizon and Evaristo Pascual sat as members "representing the
district engineer and the division superintendent of schools respectively.
On November 24, 1947, the provincial board of canvassers again met, the meeting this time
being attended by the provincial treasurer, the provincial fiscal, the district health officer, the
division superintendent of schools, the district engineer and the provincial auditor. In that
meeting the board made a new canvass of the votes and proclaimed Mamerto S.
the office of provincial governor.
Were assistant civil engineer Vicente Tizon and chief clerk Evaristo Pascual lawful members of
the provincial board of canvassers? Judge Victoriano who first took cognizance of the case
decided this question on the negative. On a motion for reconsideration Judge Edmundo Piccio,
another judge sitting in Tacloban, reversed Judge Victoriano's order. Judge Piccio said, "Verily it
would be absurd to suppose that in this kind of official commitments, the District Engineer, the
Division Superintendent of Schools could not be represented by their Assistants who are in
themselves competent and qualified persons. . . it is unreasonable to sustain the arguments that
the District Engineer and the Division Superintendent of Schools could not delegate their
prerogatives because as contended, this power or prerogatives belongs exclusively to the
Commission on Elections.
A statement in a Judge Piccio's decision needs correction although the point, in our view of the
case, is not material. It does not appear, and there is no pretense on the part of the protestee,
that the division superintendent of schools and the district engineer delegated their authority to
Pascual and Tizon. Upon whose instance or suggestion these two presumed to act in
representation of their chiefs is nor shown.
Section 158 of the Revised Election Code designates the officers who are to comprise the
provincial board of canvassers, and section 159 enumerates the officers to be appointed
substitute members by the Commission on Elections in case of the absence or incapacity of any
of the members named in the next preceding section. They are the division superintendent of
schools, the district health officer, the register of deeds, the clerk of the Court of First Instance,
and the justice of the peace of the provincial capital.
This express enumeration excludes other officers. Expresio unius est exclusio alterius. Not even
the Commission on Elections may lawfully appoint any of the person or officer outside of those
mentioned. Much less may any one other than this officers act as the member of the provincial
board of canvasser by delegation by a substitute members, by the indication of other members
of the board, or of his own volition. The appointment of a substitute member is personal and
restricted and his powers must be performed directly and in person by the appointee. To hold
otherwise would be to authorize the appointment, say, by the provincial treasurer, the provincial
auditor, or the provincial fiscal of another person to act in his stead and thus take away from the
hands of the Commission on Elections the authority to appoint under section 159.
An officer to whom a discretion is entrusted can not delegate it to another. The powers of the
board of canvassers are not purely ministerial, as the court below erroneously holds. The board
excercise quasi judicial functions, such as the function and duty to determined whether the
papers transmitted to them are genuine election returns signed by the proper officers. Thus,
where what purports to be two or more returns from the same municipality are received, the
canvassing board must necessarily determine from the face of the papers which one shall be
regarded as the true and genuine return. (20 C. J., 201-202.).
In truth, there was presented to the board on the 22nd a matter which required the used of the
judgment. It appears from the minutes of the meeting of that date that the returns from four
municipalities were incomplete or entirely missing, so much so that in accordance with section
161 the provincial treasurer notified the provincial fiscal of that fact. The minutes read:
The report of the provincial treasurer, dated November 21, 1947, to the Provincial fiscal,
regarding missing election returns in certain municipalities, that is not yet received by the
provincial treasurer, was read and considered by the Board. Also, certified statements by
the municipal treasurers of the municipalities concerned, showing the votes cast in their
municipalities as shown in their (treasurers') copies of the election returns for which no
copies for the provincial treasurer were yet received, are also presented. In order not to
delay the canvassing, it was decided that such certified statements of the respective
municipal treasurers be taken at their face value in lieu of the missing election returns.
The municipalities affected are as follows:
1. Hinunangan — (a) No election returns for board members in Precinct No. 1. (b) No
election return in Precinct No. 11.
2. Leyte — (a) No election returns to precincts No. 6 (b) No election return for board
members in Precinct No. 11. (Certified copies of these election returns were received
from the office of the Municipal Treasurer in the course of the session of the Board of
Canvassers.)
3. Pastrana — No election returns for governor and board members in Precinct No. 1.
(The missing returns were received from the municipality in the course of the session of
the Board.)
4. Merida — No election return for board members in Precinct No. 10.
Nevertheless, the Provincial Treasurer informed the Board that efforts have been and are
being exerted by his office to obtain said missing election returns. As soon as they are
received, authenticity of the said municipal treasurers' statements will have to be
considered from said returns.
On this vital question Tizon and Pascual voted. This was not a ministerial or mechanical task.
That the returns subsequently received tallied with the municipal treasurer's certificates does not
cure the mistake committed.
Quite apart from the intervention of Tizon and Pascual in the canvass, we are of the belief that
the canvass was premature and illegal. Section 162 of the Revised Election Code provides that
"If it should clearly appear that some requisite in form has been omitted in the statements, the
board shall return them by messenger or by another more expeditious means, to the
corresponding board of canvassers for correction." The board had before it not defective returns
but papers or documents that were not returns at all.
The requirement of section 160 that "the provincial board of canvassers shall meet as soon as
possible within fifteen days next following the day of election" and that "as soon as all the
statements are before it but not later than fifteen days next following the date of the election, the
provincial board of canvassers shall proceed to make the canvass of all the votes cast in the
province for national, provincial and city candidates, etc." is merely directory (20 C. J., 199) and
does not legalize the making and completing of the canvass before all the returns are in.
The protestee maintains that at any rate Pascual and Tizon were de facto officers. This
contention is without any foundation in law. An officer de facto is one who has the reputation of
being the officer he assumes to be, and yet is not a good officer in point of law. He must have
acted as an officer for such a length of time, under color of title and under such circumstances of
reputation or acquiescence by the public and public authorities, as to afford a presumption of
appointment or election, and induce people, without injury, and relying on the supposition that he
is the officer he assumes to be, to submit to or invoke his action. (46 C. J., 1053.)
Tizon and Pascual did not possess any of these conditions. They acted without any
appointment, commission or any color of title to the office. There was no acquiescence, public or
private, in their discharge of the position. In fact the very person most greatly affected by their
assumption of the office, Bernardo Torres, was not notified and was not unaware of it.
Tizon and Pascual eliminated, there were only three lawful members sitting on the board of
canvassers on November 22. Under section 159 of the Revised Penal Code the provincial board
of canvassers is to be composed of six members — the provincial governor, the two members of
the provincial board, the provincial treasurer, the provincial auditor and the provincial fiscal —
subject to be replaced by the officers named in the same section in case of their absence or
disability. The Revised Election Code does not state the number of the members of the
canvassing board necessary to be present at the canvass. One court has held that when one
member absents himself from the session before completion of the canvass the acts of the
remaining members of the board in completing the canvass and certifying the result were valid.
(Ex parte Smith [Okl.] 154, page 521.) Some courts, however have held that the canvassers
cannot act unless all are present. (Chumasero vs. Patts, 2 Mont., 242 [writ of error dismissed 92
U. S., 358; 23 L. ed., 499].)
We do not decide whether the presence of the six members of the board of canvassers is
essential. We leave this question open. Whatever the law, it is our considered opinion that the
presence of the three members is not enough compliance with the law. If it were, two would be,
and even one. There must at be a quorum, which is a majority of all the members, or one half
their number plus one. In the present case, four constitute the quorum. The decisions just cited
are very helpful on the other aspect of the case. They served to emphasize the importance
attached to the office of member of the board of canvassers and the gravity and non-delegability
of its functions and duties.
Upon the foregoing considerations, our judgment is that the meeting of November 22, 1947 of
the provincial board of canvassers and the proclamation in that meeting of the protestee were
illegal and of no effect. With this conclusion we refrain from discussing the other errors assigned
by the appellant.
The appealed order will be reversed with costs against the appellees. It is so ordered.
NORMS OF CONDUCT
G.R. No. 178454 March 28, 2011
FILIPINA SAMSON, Petitioner,
vs.
JULIA A. RESTRIVERA, Respondent.
DECISION
VILLARAMA, JR., J.:
Petitioner Filipina Samson appeals the Decision1 dated October 31, 2006 of the Court of Appeals
(CA) in CA-G.R. SP No. 83422 and its Resolution2 dated June 8, 2007, denying her motion for
reconsideration. The CA affirmed the Ombudsman in finding petitioner guilty of violating Section
4(b)3 of Republic Act (R.A.) No. 6713, otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees.
The facts are as follows:
Petitioner is a government employee, being a department head of the Population Commission
with office at the Provincial Capitol, Trece Martirez City, Cavite.
Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A. Restrivera, to
have the latter’s land located in Carmona, Cavite, registered under the Torrens System.
Petitioner said that the expenses would reach ₱150,000 and accepted ₱50,000 from respondent
to cover the initial expenses for the titling of respondent’s land. However, petitioner failed to
accomplish her task because it was found out that the land is government property. When
petitioner failed to return the ₱50,000, respondent sued her for estafa. Respondent also filed an
administrative complaint for grave misconduct or conduct unbecoming a public officer against
petitioner before the Office of the Ombudsman.
The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and
suspended her from office for six months without pay. The Ombudsman ruled that petitioner
failed to abide by the standard set in Section 4(b) of R.A. No. 6713 and deprived the government
of the benefit of committed service when she embarked on her private interest to help
respondent secure a certificate of title over the latter’s land.4
Upon motion for reconsideration, the Ombudsman, in an Order5 dated March 15, 2004, reduced
the penalty to three months suspension without pay. According to the Ombudsman, petitioner’s
acceptance of respondent’s payment created a perception that petitioner is a fixer. Her act fell
short of the standard of personal conduct required by Section 4(b) of R.A. No. 6713 that public
officials shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers
of undue patronage. The Ombudsman held:
x x x [petitioner] admitted x x x that she indeed received the amount of ₱50,000.00 from the
[respondent] and even contracted Engr. Liberato Patromo, alleged Licensed Geodetic Engineer
to do the surveys.
While it may be true that [petitioner] did not actually deal with the other government agencies for
the processing of the titles of the subject property, we believe, however, that her mere act in
accepting the money from the [respondent] with the assurance that she would work for the
issuance of the title is already enough to create a perception that she is a fixer. Section 4(b) of
[R.A.] No. 6713 mandates that public officials and employees shall endeavor to discourage
wrong perception of their roles as dispenser or peddler of undue patronage.
xxxx
x x x [petitioner’s] act to x x x restore the amount of [₱50,000] was to avoid possible sanctions.
x x x [d]uring the conciliation proceedings held on 19 October 2002 at the barangay level, it was
agreed upon by both parties that [petitioner] be given until 28 February 2003 within which to pay
the amount of ₱50,000.00 including interest. If it was true that [petitioner] had available money to
pay and had been persistent in returning the amount of [₱50,000.00] to the [respondent], she
would have easily given the same right at that moment (on 19 October 2002) in the presence of
the Barangay Officials.6 x x x. (Stress in the original.)
The CA on appeal affirmed the Ombudsman’s Order dated March 19, 2004. The CA ruled that
contrary to petitioner’s contentions, the Ombudsman has jurisdiction even if the act complained
of is a private matter. The CA also ruled that petitioner violated the norms of conduct required of
her as a public officer when she demanded and received the amount of ₱50,000 on the
representation that she can secure a title to respondent’s property and for failing to return the
amount. The CA stressed that Section 4(b) of R.A. No. 6713 requires petitioner to perform and
discharge her duties with the highest degree of excellence, professionalism, intelligence and
skill, and to endeavor to discourage wrong perceptions of her role as a dispenser and peddler of
undue patronage.7
Hence, this petition which raises the following issues:
1. Does the Ombudsman have jurisdiction over a case involving a private dealing by a
government employee or where the act complained of is not related to the performance
of official duty?
2. Did the CA commit grave abuse of discretion in finding petitioner administratively liable
despite the dismissal of the estafa case?
3. Did the CA commit grave abuse of discretion in not imposing a lower penalty in view of
mitigating circumstances?8
Petitioner insists that where the act complained of is not related to the performance of official
duty, the Ombudsman has no jurisdiction. Petitioner also imputes grave abuse of discretion on
the part of the CA for holding her administratively liable. She points out that the estafa case was
dismissed upon a finding that she was not guilty of fraud or deceit, hence misconduct cannot be
attributed to her. And even assuming that she is guilty of misconduct, she is entitled to the
benefit of mitigating circumstances such as the fact that this is the first charge against her in her
long years of public service.9
Respondent counters that the issues raised in the instant petition are the same issues that the
CA correctly resolved.10 She also alleges that petitioner failed to observe the mandate that public
office is a public trust when she meddled in an affair that belongs to another agency and
received an amount for undelivered work.11
We affirm the CA and Ombudsman that petitioner is administratively liable. We hasten to add,
however, that petitioner is guilty of conduct unbecoming a public officer.
On the first issue, we agree with the CA that the Ombudsman has jurisdiction over respondent’s
complaint against petitioner although the act complained of involves a private deal between
them.12 Section 13(1),13 Article XI of the 1987 Constitution states that the Ombudsman can
investigate on its own or on complaint by any person any act or omission of any public official or
employee when such act or omission appears to be illegal, unjust, or improper. Under Section
1614 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction of the
Ombudsman encompasses all kinds of malfeasance, misfeasance, and nonfeasance committed
by any public officer or employee during his/her tenure. Section 1915 of R.A. No. 6770 also states
that the Ombudsman shall act on all complaints relating, but not limited, to acts or omissions
which are unfair or irregular. Thus, even if the complaint concerns an act of the public official or
employee which is not service-connected, the case is within the jurisdiction of the Ombudsman.
The law does not qualify the nature of the illegal act or omission of the public official or employee
that the Ombudsman may investigate. It does not require that the act or omission be related to or
be connected with or arise from the performance of official duty. Since the law does not
distinguish, neither should we.16
On the second issue, it is wrong for petitioner to say that since the estafa case against her was
dismissed, she cannot be found administratively liable. It is settled that administrative cases may
proceed independently of criminal proceedings, and may continue despite the dismissal of the
criminal charges.17
For proper consideration instead is petitioner’s liability under Sec. 4(A)(b) of R.A. No. 6713.
We quote the full text of Section 4 of R.A. No. 6713:
SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and
employee shall observe the following as standards of personal conduct in the discharge and
execution of official duties:
(a) Commitment to public interest. - Public officials and employees shall always
uphold the public interest over and above personal interest. All government
resources and powers of their respective offices must be employed and used
efficiently, effectively, honestly and economically, particularly to avoid wastage in
public funds and revenues.
(b) Professionalism. - Public officials and employees shall perform and discharge
their duties with the highest degree of excellence, professionalism, intelligence
and skill. They shall enter public service with utmost devotion and dedication to
duty. They shall endeavor to discourage wrong perceptions of their roles as
dispensers or peddlers of undue patronage.
(c) Justness and sincerity. - Public officials and employees shall remain true to
the people at all times. They must act with justness and sincerity and shall not
discriminate against anyone, especially the poor and the underprivileged. They
shall at all times respect the rights of others, and shall refrain from doing acts
contrary to law, good morals, good customs, public policy, public order, public
safety and public interest. They shall not dispense or extend undue favors on
account of their office to their relatives whether by consanguinity or affinity except
 with respect to appointments of such relatives to positions considered strictly
confidential or as members of their personal staff whose terms are coterminous
with theirs.
(d) Political neutrality. - Public officials and employees shall provide service to
everyone without unfair discrimination and regardless of party affiliation or
preference.
(e) Responsiveness to the public. - Public officials and employees shall extend
prompt, courteous, and adequate service to the public. Unless otherwise
provided by law or when required by the public interest, public officials and
employees shall provide information on their policies and procedures in clear and
understandable language, ensure openness of information, public consultations
and hearings whenever appropriate, encourage suggestions, simplify and
systematize policy, rules and procedures, avoid red tape and develop an
understanding and appreciation of the socioeconomic conditions prevailing in the
country, especially in the depressed rural and urban areas.
(f) Nationalism and patriotism. - Public officials and employees shall at all times
be loyal to the Republic and to the Filipino people, promote the use of locally-
produced goods, resources and technology and encourage appreciation and
pride of country and people. They shall endeavor to maintain and defend
Philippine sovereignty against foreign intrusion.
(g) Commitment to democracy. - Public officials and employees shall commit
themselves to the democratic way of life and values, maintain the principle of
public accountability, and manifest by deed the supremacy of civilian authority
over the military. They shall at all times uphold the Constitution and put loyalty to
country above loyalty to persons or party.
(h) Simple living. - Public officials and employees and their families shall lead
modest lives appropriate to their positions and income. They shall not indulge in
extravagant or ostentatious display of wealth in any form.
(B) The Civil Service Commission shall adopt positive measures to promote (1)
observance of these standards including the dissemination of information programs and
workshops authorizing merit increases beyond regular progression steps, to a limited
number of employees recognized by their office colleagues to be outstanding in their
observance of ethical standards; and (2) continuing research and experimentation on
measures which provide positive motivation to public officials and employees in raising
the general level of observance of these standards.
Both the Ombudsman and CA found the petitioner administratively liable for violating Section
4(A)(b) on professionalism. "Professionalism" is defined as the conduct, aims, or qualities that
characterize or mark a profession. A professional refers to a person who engages in an activity
with great competence. Indeed, to call a person a professional is to describe him as competent,
efficient, experienced, proficient or polished.18 In the context of Section 4 (A)(b) of R.A. No. 6713,
the observance of professionalism also means upholding the integrity of public office by
endeavoring "to discourage wrong perception of their roles as dispensers or peddlers of undue
patronage." Thus, a public official or employee should avoid any appearance of impropriety
affecting the integrity of government services. However, it should be noted that Section 4(A)
enumerates the standards of personal conduct for public officers with reference to "execution of
official duties."
In the case at bar, the Ombudsman concluded that petitioner failed to carry out the standard of
professionalism by devoting herself on her personal interest to the detriment of her solemn public
duty. The Ombudsman said that petitioner’s act deprived the government of her committed
service because the generation of a certificate of title was not within her line of public service. In
denying petitioner’s motion for reconsideration, the Ombudsman said that it would have been
sufficient if petitioner just referred the respondent to the persons/officials incharge of the
processing of the documents for the issuance of a certificate of title. While it may be true that she
did not actually deal with the other government agencies for the processing of the titles of the
subject property, petitioner’s act of accepting the money from respondent with the assurance that
she would work for the issuance of the title is already enough to create a perception that she is a
fixer.
On its part, the CA rejected petitioner’s argument that an isolated act is insufficient to create
those "wrong perceptions" or the "impression of influence peddling." It held that the law enjoins
public officers, at all times to respect the rights of others and refrain from doing acts contrary to
law, good customs, public order, public policy, public safety and public interest. Thus, it is not the
plurality of the acts that is being punished but the commission of the act itself.
Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A. No. 6713 as broad
enough to apply even to private transactions that have no connection to the duties of one’s
office. We hold, however, that petitioner may not be penalized for violation of Section 4 (A)(b) of
R.A. No. 6713. The reason though does not lie in the fact that the act complained of is not at all
related to petitioner’s discharge of her duties as department head of the Population Commission.
In addition to its directive under Section 4(B), Congress authorized19 the Civil Service
Commission (CSC) to promulgate the rules and regulations necessary to implement R.A. No.
6713. Accordingly, the CSC issued the Rules Implementing the Code of Conduct and Ethical
Standards for Public Officials and Employees (hereafter, Implementing Rules). Rule V of the
Implementing Rules provides for an Incentive and Rewards System for public officials and
employees who have demonstrated exemplary service and conduct on the basis of their
observance of the norms of conduct laid down in Section 4 of R.A. No. 6713, to wit:
 RULE V. INCENTIVES AND REWARDS SYSTEM (c) Engaging in the private practice of his profession unless authorized by the
Constitution, law or regulation, provided that such practice will not conflict or tend to
SECTION 1. Incentives and rewards shall be granted officials and employees who have conflict with his official functions;
demonstrated exemplary service and conduct on the basis of their observance of the norms of
conduct laid down in Section 4 of the Code, namely: (d) Recommending any person to any position in a private enterprise which has a regular
or pending official transaction with his office, unless such recommendation or referral is
(a) Commitment to public interest. - x x x mandated by (1) law, or (2) international agreements, commitment and obligation, or as
part of the functions of his office;
(b) Professionalism. - x x x
xxxx
(c) Justness and sincerity. - x x x
(e) Disclosing or misusing confidential or classified information officially known to him by
(d) Political neutrality. - x x x reason of his office and not made available to the public, to further his private interests or
give undue advantage to anyone, or to prejudice the public interest;
(e) Responsiveness to the public. - x x x
(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, entertainment,
loan or anything of monetary value which in the course of his official duties or in
(f) Nationalism and patriotism. - x x x
connection with any operation being regulated by, or any transaction which may be
affected by the functions of, his office. x x x.
(g) Commitment to democracy. - x x x
xxxx
(h) Simple living. - x x x
(g) Obtaining or using any statement filed under the Code for any purpose contrary to
On the other hand, Rule X of the Implementing Rules enumerates grounds for administrative morals or public policy or any commercial purpose other than by news and
disciplinary action, as follows: communications media for dissemination to the general public;

RULE X. GROUNDS FOR ADMINISTRATIVE DISCIPLINARY ACTION (h) Unfair discrimination in rendering public service due to party affiliation or preference;

SECTION 1. In addition to the grounds for administrative disciplinary action prescribed under (i) Disloyalty to the Republic of the Philippines and to the Filipino people;
existing laws, the acts and omissions of any official or employee, whether or not he holds office
or employment in a casual, temporary, hold-over, permanent or regular capacity, declared
(j) Failure to act promptly on letters and request within fifteen (15) days from receipt,
unlawful or prohibited by the Code, shall constitute grounds for administrative disciplinary action,
except as otherwise provided in these Rules;
and without prejudice to criminal and civil liabilities provided herein, such as:
(k) Failure to process documents and complete action on documents and papers within a
(a) Directly or indirectly having financial and material interest in any transaction requiring
reasonable time from preparation thereof, except as otherwise provided in these Rules;
the approval of his office. x x x.
(l) Failure to attend to anyone who wants to avail himself of the services of the office, or
(b) Owning, controlling, managing or accepting employment as officer, employee,
to act promptly and expeditiously on public personal transactions;
consultant, counsel, broker, agent, trustee, or nominee in any private enterprise
regulated, supervised or licensed by his office, unless expressly allowed by law;
(m) Failure to file sworn statements of assets, liabilities and net worth, and disclosure of
business interests and financial connections; and
 (n) Failure to resign from his position in the private business enterprise within thirty (30)
days from assumption of public office when conflict of interest arises, and/or failure to
divest himself of his shareholdings or interests in private business enterprise within sixty
(60) days from such assumption of public office when conflict of interest arises: Provided,
however, that for those who are already in the service and a conflict of interest arises,
the official or employee must either resign or divest himself of said interests within the
periods herein-above provided, reckoned from the date when the conflict of interest had
arisen.
In Domingo v. Office of the Ombudsman,20 this Court had the occasion to rule that failure to
abide by the norms of conduct under Section 4(A)(b) of R.A. No. 6713, in relation to its
implementing rules, is not a ground for disciplinary action, to wit:
The charge of violation of Section 4(b) of R.A. No. 6713 deserves further comment. The
provision commands that "public officials and employees shall perform and discharge their duties
with the highest degree of excellence, professionalism, intelligence and skill." Said provision
merely enunciates "professionalism as an ideal norm of conduct to be observed by public
servants, in addition to commitment to public interest, justness and sincerity, political neutrality,
responsiveness to the public, nationalism and patriotism, commitment to democracy and simple
living. Following this perspective, Rule V of the Implementing Rules of R.A. No. 6713 adopted by
the Civil Service Commission mandates the grant of incentives and rewards to officials and
employees who demonstrate exemplary service and conduct based on their observance of the
norms of conduct laid down in Section 4. In other words, under the mandated incentives and
rewards system, officials and employees who comply with the high standard set by law would be
rewarded. Those who fail to do so cannot expect the same favorable treatment. However, the
Implementing Rules does not provide that they will have to be sanctioned for failure to
observe these norms of conduct. Indeed, Rule X of the Implementing Rules affirms as
grounds for administrative disciplinary action only acts "declared unlawful or prohibited
by the Code." Rule X specifically mentions at least twenty three (23) acts or omissions as
grounds for administrative disciplinary action. Failure to abide by the norms of conduct
under Section 4(b) of R.A. No. 6713 is not one of them. (Emphasis supplied.)
Consequently, the Court dismissed the charge of violation of Section 4(A)(b) of R.A. No. 6713 in
that case.
We find no compelling reason to depart from our pronouncement in Domingo. Thus, we reverse
the CA and Ombudsman that petitioner is administratively liable under Section 4(A)(b) of R.A.
No. 6713. In so ruling, we do no less and no more than apply the law and its implementing rules
issued by the CSC under the authority given to it by Congress. Needless to stress, said rules
partake the nature of a statute and are binding as if written in the law itself. They have the force
and effect of law and enjoy the presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent court.21
But is petitioner nonetheless guilty of grave misconduct, which is a ground for disciplinary action
under R.A. No. 6713?
We also rule in the negative.
Misconduct is a transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer. The misconduct is grave if it involves
any of the additional elements of corruption, willful intent to violate the law or to disregard
established rules, which must be proved by substantial evidence. Otherwise, the misconduct is
only simple.22 Conversely, one cannot be found guilty of misconduct in the absence of
substantial evidence. In one case, we affirmed a finding of grave misconduct because there was
substantial evidence of voluntary disregard of established rules in the procurement of supplies
as well as of manifest intent to disregard said rules.23 We have also ruled that complicity in the
transgression of a regulation of the Bureau of Internal Revenue constitutes simple misconduct
only as there was failure to establish flagrancy in respondent’s act for her to be held liable of
gross misconduct.24 On the other hand, we have likewise dismissed a complaint for knowingly
rendering an unjust order, gross ignorance of the law, and grave misconduct, since the
complainant did not even indicate the particular acts of the judge which were allegedly violative
of the Code of Judicial Conduct.25
In this case, respondent failed to prove (1) petitioner’s violation of an established and definite
rule of action or unlawful behavior or gross negligence, and (2) any of the aggravating elements
of corruption, willful intent to violate a law or to disregard established rules on the part of
petitioner. In fact, respondent could merely point to petitioner’s alleged failure to observe the
mandate that public office is a public trust when petitioner allegedly meddled in an affair that
belongs to another agency and received an amount for undelivered work.
True, public officers and employees must be guided by the principle enshrined in the
Constitution that public office is a public trust. However, respondent’s allegation that petitioner
meddled in an affair that belongs to another agency is a serious but unproven accusation.
Respondent did not even say what acts of interference were done by petitioner. Neither did
respondent say in which government agency petitioner committed interference. And causing the
survey of respondent’s land can hardly be considered as meddling in the affairs of another
government agency by petitioner who is connected with the Population Commission. It does not
show that petitioner made an illegal deal or any deal with any government agency. Even the
Ombudsman has recognized this fact. The survey shows only that petitioner contracted a
surveyor. Respondent said nothing on the propriety or legality of what petitioner did. The survey
1i hpwa1
shows that petitioner also started to work on her task under their agreement. Thus, respondent’s
allegation that petitioner received an amount for undelivered work is not entirely correct. Rather,
petitioner failed to fully accomplish her task in view of the legal obstacle that the land is
government property.
However, the foregoing does not mean that petitioner is absolved of any administrative liability.
But first, we need to modify the CA finding that petitioner demanded the amount of ₱50,000 from
respondent because respondent did not even say that petitioner demanded money from
her.26 We find in the allegations and counter-allegations that respondent came to petitioner’s
house in Biñan, Laguna, and asked petitioner if she can help respondent secure a title to her
land which she intends to sell. Petitioner agreed to help. When respondent asked about the cost,
petitioner said ₱150,000 and accepted ₱50,000 from respondent to cover the initial expenses.27
We agree with the common finding of the Ombudsman and the CA that, in the aftermath of the
aborted transaction, petitioner still failed to return the amount she accepted. As aptly stated by
the Ombudsman, if petitioner was persistent in returning the amount of ₱50,000 until the
preliminary investigation of the estafa case on September 18, 2003,28 there would have been no
need for the parties’ agreement that petitioner be given until February 28, 2003 to pay said
amount including interest. Indeed, petitioner’s belated attempt to return the amount was intended
to avoid possible sanctions and impelled solely by the filing of the estafa case against her.
For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct
unbecoming a public officer. In Joson v. Macapagal, we have also ruled that the respondents
therein were guilty of conduct unbecoming of government employees when they reneged on
their promise to have pertinent documents notarized and submitted to the Government Service
Insurance System after the complainant’s rights over the subject property were transferred to the
sister of one of the respondents.29 Recently, in Assistant Special Prosecutor III Rohermia J.
Jamsani-Rodriguez v. Justices Gregory S. Ong, et al., we said that unbecoming conduct means
improper performance and applies to a broader range of transgressions of rules not only of
social behavior but of ethical practice or logical procedure or prescribed method.30 1avv phi 1
This Court has too often declared that any act that falls short of the exacting standards for public
office shall not be countenanced.31 The Constitution categorically declares as follows:
SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.32
Petitioner should have complied with her promise to return the amount to respondent after failing
to accomplish the task she had willingly accepted. However, she waited until respondent sued
her for estafa, thus reinforcing the latter’s suspicion that petitioner misappropriated her money.
Although the element of deceit was not proven in the criminal case respondent filed against the
petitioner, it is clear that by her actuations, petitioner violated basic social and ethical norms in
her private dealings. Even if unrelated to her duties as a public officer, petitioner’s transgression
could erode the public’s trust in government employees, moreso because she holds a high
position in the service.
As to the penalty, we reprimanded the respondents in Joson and imposed a fine in Jamsani-
Rodriguez. Under the circumstances of this case, a fine of ₱15,000 in lieu of the three months
suspension is proper. In imposing said fine, we have considered as a mitigating circumstance
petitioner’s 37 years of public service and the fact that this is the first charge against
her.33 Section 5334 of the Revised Uniform Rules on Administrative Cases in the Civil Service
provides that mitigating circumstances such as length of service shall be considered. And since
petitioner has earlier agreed to return the amount of ₱50,000 including interest, we find it proper
to order her to comply with said agreement. Eventually, the parties may even find time to
rekindle their friendship.
WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of the Court of Appeals
and its Resolution dated June 8, 2007 in CA-G.R. SP No. 83422, as well as the Decision dated
January 6, 2004 and Order dated March 15, 2004 of the Ombudsman in OMB-L-A-03-0552-F,
and ENTER a new judgment as follows:
We find petitioner GUILTY of conduct unbecoming a public officer and impose upon her
a FINE of ₱15,000.00 to be paid at the Office of the Ombudsman within five (5) days from finality
of this Decision.
We also ORDER petitioner to return to respondent the amount of ₱50,000.00 with interest
thereon at 12% per annum from March 2001 until the said amount shall have been fully paid.
With costs against the petitioner.
SO ORDERED.
RIGHT TO OFFICE
G.R. Nos. 147248-49 January 23, 2002
BAYBAY WATER DISTRICT, represented by ERNESTO D. FERNANDEZ, General Manager;
ERLINDA MENDEZ, SAMUEL O. CANETE, NILO RAMADA, DOMINGO COTIAMCO, BWD
Board of Directors, and other similarly situated Officers and Board Members of
BWD, petitioners,
vs.
COMMISSION ON AUDIT, respondent.
MENDOZA, J.:
This is a special civil action for certiorari under Rule 64 of the 1997 Revised Rules of Court for
annulment of the decision, dated September 21, 2000, of the Commission on Audit1 and its
resolution, dated January 30, 2001, affirming the disallowance by the Director, COA Regional
Office No. VIII, of the payment of various benefits to members of the board of directors and
officers of petitioner Baybay Water District (BWD) in Baybay, Leyte.
The facts are as follows:
In 1996, the Resident Auditor of the BWD conducted an audit of its 1994 accounts. In the course
of the audit, the auditor disallowed payments of per diems in excess of those authorized by the
Local Water Utilities Administration (LWUA) and P. D. No. 198, RATA (representation and
transportation allowance) and rice allowances granted to the members of the board of directors
of the BWD, as well as duplication of claims for cash gifts as part of the Christmas bonus of the
general manager and traveling allowance of the officers of the BWD. The members of the board,
namely, petitioners Domingo V. Cotiamco, Apolonio G. Medina, Nilo T. Ramada, Virginia P.
Espinosa, Ernesto L. Gorre, Antonio R. C. Palencia, Love Joy A. Fernandez, and Frank Bula,
Administrative Division Chief Erlinda A. Mendez, and then General Manager Francis H. P.
Militante, the officers who had approved the release of these benefits, were served with notices
of disallowance. Ma. Josette B. Astorga, to whom rice allowances had been given, and the other
petitioners in this case were also served with similar notices.
On May 30, 1997, petitioners asked for a reconsideration, but the Resident Auditor denied their
request on the ground that the disallowance had become final and executory. Instead, she
advised them to make their appeal to the Commission on Audit. The BWD at first appealed to the
COA Regional Office No. VIII at Tacloban City, which affirmed the findings of the Resident
Auditor of Baybay, Leyte, and then to the Commission on Audit. On September 21, 2000, the
Commission rendered a decision, the dispositive portion of which reads:
WHEREFORE, premises considered, it is regretted that the instant appeal cannot be
given due course for lack of merit. Accordingly, the decision of the Director COA
Regional Office No. VIII is hereby affirmed and the following persons cited in the various
Notices of Disallowances, namely:
Erlinda A. Mendez, for approving the questioned
payment and at the same time
being payee;
Francis H. P. Militante - do -
Domingo V. Cotiamco as payee
Apolonio G. Medina - do -
Nilo T. Ramada - do -
Virginia P. Espinosa - do -
Ernesto L. Gorre - do -
Antonio R. C. Palencia - do -
Ma. Josette B. Astorga - do -
Love Joy A. Fernandez - do -
Frank Bula - do -
are held liable.2
Petitioners filed a motion for reconsideration. As their motion was denied by the Commission on
January 30, 2001, they filed the present petition, alleging that the Commission erred in:
I. NOT HOLDING THAT THE GRANT OF THE SUBJECT BENEFITS TO THE
DIRECTORS, OFFICERS AND EMPLOYEES OF BWD, HAS LEGAL BASIS, AND IS
GUARANTEED BY THE CONSTITUTION.
II. HOLDING THAT PETITIONERS ARE NOT ENTITLED TO RECEIVE OTHER
BENEFITS PURSUANT TO SECTION 13 OF PD 198, AS AMENDED.
III. NOT HOLDING THAT SECTION 13 OF P. D. 198, AS AMENDED, WAS ALREADY
REPEALED AND/OR SUPERSEDED BY REPUBLIC ACT 6758, OTHERWISE KNOWN
AS THE SALARY STANDARDIZATION LAW, WHICH TOOK EFFECT IN JULY, 1989.
IV. HOLDING THAT THE CONTINUED DISALLOWANCE OF THESE BENEFITS
WOULD NOT VIOLATE THE POLICY OR RULE ON NON-DIMINUTION OF BENEFITS
AND THE EQUITY RULE.
V. NOT HOLDING THAT THE BENEFITS GRANTED TO BWD OFFICERS AND
EMPLOYEES IS A MANAGEMENT PREROGATIVE WHICH ACT OR PRIVILEGE
SHOULD ENJOY THE PRESUMPTION OF LEGALITY UNTIL OTHERWISE
DECLARED BY THE COURTS AND THAT THE GRANT OF THESE BENEFITS NOT
ONLY APPLIES TO THE PERMANENT EMPLOYEES BUT ALSO TO THE OFFICERS
AND MEMBERS OF THE BOARD OF BWD.3
The issues raised in this case are as follows: (1) whether members of the board of directors of
water districts are entitled to receive benefits in addition to those authorized to be paid pursuant
to their charter and the guidelines of the LWUA after the effectivity of R. A. No. 6758; (2) whether
the disallowance of duplication of claims of transportation allowance of various BWD employees,
as well as the grant of RATA, rice allowance, and excessive per diems to members of the board
of directors of BWD, would impair vested rights, violate any rule against diminution of benefits,
and undermine the management prerogative of water districts; and (3) whether the BWD officers
and employees are entitled to receive benefits in excess of that authorized by law.
For the reasons hereafter given, we hold that petitioners are not entitled to receive benefits and
allowances in excess of those allowed by P.D. No. 198, the guidelines of the LWUA, and other
applicable laws.
First. As far as the directors of the BWD are concerned, P. D. No. 198, §13, as amended by P.
D. No. 768 and P. D. No. 1479, reads:
Compensation. — Each director shall receive a per diem, to be determined by the board,
for each meeting of the board actually attended by him, but no director shall receive per
diems in any given month in excess of the equivalent of the total per diems of four
meetings in any given month. No director shall receive other compensation for services
to the district.
Any per diem in excess of ₱50 shall be subject to approval of the Administration.
(emphasis added)
Petitioners argue that the term "compensation" in the above provision does not include the
allowances and per diems which had been disallowed in this case. They cite P. D. No.
1146,4 §2(i), as amended by R.A. No. 8291, which provides that "compensation" means "the
basic pay or salary by an employee, pursuant to his employment/appointment, excluding per
diems, bonuses, overtime pay, allowances and any other emoluments received in addition to the
basic pay which are not integrated into the basic pay under existing laws."
The contention is untenable. The statutory provision invoked refers to the basis for the
computation of employer and employee contributions to the GSIS as well as the benefits to
which such employees are entitled. In the same manner, under §32 of the National Internal
Revenue Code, "compensation" includes fees, salaries, wages, commissions, and similar items
for purposes of recognizing taxable income. The definitions of the term "compensation" in these
statutes are for limited purposes only and cannot be deemed to comprehend such other
purposes not specifically included in the provisions thereof.
Petitioners, also invoke the rulings of this Court in Kneebone v. NLRC,5 Vengco v.
Trajano,6 and Philippine Duplicators, Inc. v. NLRC,7 to support their contention that the prohibition
against the payment of compensation other than per diems does not include the payment of
allowances and other benefits.
These cases do not apply to this case. They refer to the exclusion made by this Court of
allowances and other benefits from the salaries of employees in the private sector, not to the
compensation of members of the board of directors of water districts, whose rights to
compensation, as already stated, are governed by P. D. No. 198. Under §13 of this Decree, per
diem is precisely intended to be the compensation of members of board of directors of water
districts. Indeed, words and phrases in a statute must be given their natural, ordinary, and
commonly-accepted meaning,8 due regard being given to the context in which the words and
phrases are used.9 By specifying the compensation which a director is entitled to receive and by
limiting the amount he/she is allowed to receive in a month, and, in the same paragraph,
providing "No director shall receive other compensation" than the amount provided for per diems,
the law quite clearly indicates that directors of water districts are authorized to receive only
the per diem authorized by law and no other compensation or allowance in whatever form.
Second. Petitioners contend that the prohibition in P.D. No. 198, §13 against the grant of
additional compensation to board members must be deemed repealed by virtue of §2210 of R. A.
No. 6758, otherwise known as the Salary Standardization Law, which took effect on July 1,
1989. They contend that §13 of P.D. No. 198 is inconsistent with the following provisions of the
Salary Standardization Law:
Sec. 12. Consolidation of Allowances and Compensation.-All allowances, except for
representation and transportation allowances; clothing and laundry allowances;
subsistence allowance of marine officers and crew on board government vessels and
hospital personnel; hazard pay; allowances of foreign service personnel stationed
abroad; and such other additional compensation not otherwise specified herein as may
be determined by the DBM, shall be deemed included in the standardized salary rates
herein prescribed. Such other additional compensation, whether in cash or in kind, being
received by incumbents only as of July 1, 1989 not integrated into the standardized
salary rates shall continue to be authorized.
....
Sec. 17. Salaries of Incumbents.-Incumbents of positions presently receiving salaries
and additional compensation/fringe benefits including those absorbed from local
government units and other emoluments, the aggregate of which exceeds the
standardized salary rate as herein prescribed, shall continue to receive such excess
compensation, which shall be referred to as transition allowance. The transition
allowance shall be reduced by the amount of salary adjustment that the incumbent shall
receive in the future.
We do not agree. R. A. No. 6758, §4 specifically provides that the Salary Standardization Law
applies to "positions, appointive or elective, on full or part-time basis, now existing or hereafter
created in the government, including government-owned or controlled corporations and
government financial institutions." These positions, with their corresponding functions, are
described as follows:
Sec. 5. Position Classification System. – The Position Classification System shall consist
of classes of positions grouped into four main categories, namely: professional
supervisory, professional non-supervisory, sub-professional supervisory, and sub-
professional non-supervisory, and the rules and regulations for its implementation.
Categorization of these classes of positions shall be guided by the following
considerations:
(a) Professional Supervisory Category. – This category includes responsible positions of
a managerial character involving the exercise of management functions such as
planning, organizing, directing, coordinating, controlling and overseeing within delegated
authority the activities of an organization, a unit thereof or of a group, requiring some
degree of professional, technical or scientific knowledge and experience, application of
managerial or supervisory skills required to carry out their basic duties and
responsibilities involving functional guidance and control, leadership, as well as line
supervision. These positions require intensive and thorough knowledge of a specialized
field usually acquired from completion of a bachelor’s degree or higher degree courses.
The positions in this category are assigned Salary Grade 9 to Salary Grade 33.
(b) Professional Non-Supervisory Category. – This category includes positions
performing tasks which usually require the exercise of a particular profession or
application of knowledge acquired through formal training in a particular field or just the
exercise of a natural, creative and artistic ability or talent in literature, drama, music and
other branches of arts and letters. Also included are positions involved in research and
application of professional knowledge and methods to a variety of technological,
economic, social, industrial and governmental functions; the performance of technical
tasks auxiliary to scientific research and development; and in the performance of
religious, educational, legal, artistic or literary functions. These positions require thorough
knowledge in the field of arts and sciences or learning acquired through completion of at
least four (4) years of college studies.
The positions in this category are assigned Salary Grade 8 to Salary Grade 30.
(c) Sub-Professional Supervisory Category. – This category includes positions
performing supervisory functions over a group of employees engaged in responsible
work along technical, manual or clerical lines of work which are short of professional
work, requiring training and moderate experience or lower training but considerable
experience and knowledge of a limited subject matter or skills in arts, crafts or trades.
These positions require knowledge acquired from secondary or vocational education or
completion of up to two (2) years of college education.
The positions in this category are assigned Salary Grade 4 to Salary Grade 18.
(d) Sub-Professional Non-Supervisory Category. – This category includes positions
involved in structured work in support of office or fiscal operations or those engaged in
crafts, trades or manual work. These positions usually require skills acquired through
training and experience or completion of elementary education, secondary or vocational
education or completion of up to two (2) years of college education.
The positions in this category are assigned Salary Grade 1 to Salary Grade 10.
It is obvious that the Salary Standardization Law does not apply to petitioners because directors
of water districts are in fact limited to policy-making and are prohibited from the management of
the districts. P.D. No. 198, §18 described the functions of members of boards of directors of
water districts as follows:
Sec. 18. Functions Limited to Policy-Making. — The function of the board shall be to
establish policy. The Board shall not engage in the detailed management of the district.
Furthermore, the fact that §§12 and 17 of the Salary Standardization Law speak of allowances
as "benefits" paid in addition to the salaries incumbents are presently receiving makes it clear
that the law does not refer to the compensation of board of directors of water districts as these
directors do not receive salaries but per diems for their compensation.
It is noteworthy that even the Local Water Utilities Administration (LWUA), in Resolution No. 313,
s. 1995, entitled "Policy Guidelines on Compensation and Other Benefits to WD Board of
Directors," on which petitioners rely for authority to grant themselves additional benefits,
acknowledges that directors of water districts are not organic personnel and, as such, are
deemed excluded from the coverage of the Salary Standardization Law. Memorandum Circular
No. 94-002 of the DBM-CSC-LWUA-PAWD Oversight Committee states in pertinent part:
As the WD Board of Directors’ function is limited to policy-making under Sec. 18 of
Presidential Decree 198, as amended, it is the position of the Oversight Committee that
said WD Directors are not to be treated as organic personnel, and as such are deemed
excluded from the coverage of RA 6758, and that their powers, rights and privileges are
governed by the pertinent provisions of PD 198, as amended, not by RA 6758 or
Executive Order No. 164, s. 1994.
There is, therefore, no basis for petitioners’ contention that the provisions of P.D. No. 198 on the
compensation of members of the board of directors of water districts are inconsistent with the
provisions of the Salary Standardization Law.
Third. Petitioners contend that even before this Court declared in Davao City Water
District v. Civil Service Commission11 that water districts are government-owned and controlled
corporations subject to the jurisdiction of the COA, water districts had already been granting
additional benefits to members of the board of directors, with the approval of the Local Water
Utilities Administration (LWUA), and to their officers and employees and that they continued
doing so after the promulgation of the decision in that case. Petitioners contend they have thus
acquired a vested right to these benefits of which they cannot now be deprived without violating
their property rights and the rule on non-diminution of benefits.
This contention too has no merit. The erroneous application and enforcement of the law by
public officers does not estop the Government from making a subsequent correction of such
errors.12 More specifically, where there is an express provision of law prohibiting the grant of
certain benefits, the law must be enforced even if it prejudices certain parties due to an error
committed by public officials in granting the benefit.13 As already stated, P.D. No. 198 expressly
prohibits the grant of compensation other than the payment of per diems, as determined by the
LWUA pursuant to P. D. No. 198, to directors of water districts. Practice, without more, no matter
how long continued, cannot give rise to any vested right if it is contrary to law.14
The same rule applies to the officers and employees of the BWD. R.A. No. 6686, which then
applied, provides that all government personnel are entitled to a Christmas bonus of one (1)
month basic salary and additional cash gift of ₱1,000.00.15 The cash gift granted to Francis H. P.
Militante, BWD Manager, for the year 1994 amounted to ₱1,500.00. The Resident Auditor,
therefore, properly disallowed the ₱500.00 thereof as this amount was in excess of that
authorized by law. On the other hand, findings regarding the duplication of claims for the
transportation allowance granted to various employees of the BWD are findings of fact by the
Resident Auditor. The question is whether such claims were properly accounted for and not
whether this disallowance will impair vested rights. It is well-settled that findings of fact of quasi-
judicial agencies, such as the COA, are generally accorded respect and even finality by this
Court, if supported by substantial evidence, in recognition of their expertise on the specific
matters under their jurisdiction.16 In the present case, the findings of the Resident Auditor were
not only supported by the evidence, but they remained unrebutted by petitioners who simply
relied on claims based on impairment of vested rights and diminution of benefits.
Petitioners’ reliance on De Jesus v. Commission on Audit,17 Philippine Ports Authority v.
Commission on Audit,18 and Manila International Airport Authority v. Commission on Audit19 is
likewise erroneous. In De Jesus, it was held that the circular issued by the Department of Budget
and Management to implement the Salary Standardization Law, which discontinued the payment
of allowances and fringe benefits previously granted on top of basic salary, was ineffective for
lack of publication in the Official Gazette or in a newspaper of general circulation, as required by
law. On the other hand, in Philippine Ports Authority and Manila International Airport
Authority, the issue resolved was the right of employees to receive RATA over and above the
standardized salary after the effectivity of R. A. No. 6758. These cases are not in point as the
issues in the present case are, to repeat, (1) whether members of the board of directors of water
districts are entitled to receive even after the effectivity of the Salary Standardization Law
benefits other than their authorized per diems, contrary to the provisions of their charter and the
resolution of the LWUA; (2) whether the disallowance of duplication of claims of transportation
allowance to BWD employees, as well as the grant of RATA, rice allowance, and excessive per
diems to members of the board of directors of BWD, would impair vested rights and violate any
rule against diminution of benefits and undermine the management prerogative of the BWD; and
(3) whether the BWD officers and employees are entitled to receive benefits in excess of that
authorized by law.
Fourth. Petitioners invoke management prerogative to justify the grant of allowances and other
benefits to both the board of directors of BWD and its officers and employees.
With respect to the board of directors, there is no basis for such contention. To begin with,
management prerogative refers to the right of an employer to regulate all aspects of
employment, such as the freedom to prescribe work assignments, working methods, processes
to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and
discipline, and dismissal and recall of work.20 Clearly, the existence of such right presupposes the
existence of an employer-employee relationship. In the present case, the BWD board of directors
are not employees of BWD. As already noted, their function, as defined by P. D. No. 198, is
limited to policy-making,21 implying that their relationship to the water district is more fiduciary
than that of employer-employee. Moreover, as also noted before, the right of directors of water
districts to the payment of compensation is expressly provided for in P.D. No. 198, thus pre-
empting the exercise of any discretion by the water districts.
With respect to the officers and employees of BWD, it has been held that the terms and
conditions of employment of government employees are governed by law.22 Thus, the exercise of
management prerogative by government corporations are limited by the provisions of the laws
applicable to them. The cash gift granted to the general manager as part of his Christmas bonus
was in excess of that authorized by R. A. No. 6686. It cannot be justified by the exercise of
management prerogative as it is contrary to law.
Finally, the disallowance of the duplication of claims for transportation allowance does not fall
under management prerogative as this does not pertain to the power of management to
determine the terms and conditions of employment but pertains to whether or not the claims are
properly accounted for.
Fifth. Petitioners finally cite the grant of similar benefits to the directors of the National Power
Corporation (NAPOCOR) to support their claim that board of directors are entitled to receive
allowances and other benefits in addition to per diems. The comparison drawn by petitioner
between the BWD and NAPOCOR has no basis. The grant of other allowances to NAPOCOR
board members in COA Decision No. 99-020 is based on the Revised NAPOCOR Charter (R. A.
No. 6395, as amended by P. D. No. 1360), which states:
Sec. 6 . . . . The members of said Board shall receive a per diem of not to exceed Five
Hundred Pesos for each regular or special meeting of the Board actually attended by
 them, and upon approval of the Secretary of Energy, shall receive such other allowances
as the Board may prescribe, any provision of law to the contrary notwithstanding.
As the Commission pointed out in its decision COA Case No. 90-020:
The entitlement to per diems and other allowances by members of the board was
originally derived from the revised NPC Charter. All allowances enjoyed by the board
members were approved by the Ministry of Energy to conform with the imposition of an
additional condition under the NPC Charter that the receipt of the allowances other than
per diems should carry the approval of the MOE.
The entitlement to these allowances cannot be removed by R.A. 6758 or any subsequent
law, consistent with the policy of non-diminution of pay embodied under R. A. 6758 since
these allowances were already being received and the board’s right to these allowances
was already established before the enactment of R. A. 6758.
Since the allowances were fixed at a time when the authority of the board to grant the
same was still valid and effective, the allowances are also valid and should remain part
of the compensation of the members of the board.
Unlike P.D. No. 198, §13, the Charter of NAPOCOR expressly granted members of its board of
directors the right to receive allowances in addition to their per diems, subject only to the
approval of the Secretary of Energy. Petitioners cannot thus claim similar treatment as the board
of directors of NAPOCOR. The BWD board of directors’ right to compensation, it bears
emphasis, is limited to per diems.
WHEREFORE, the petition for certiorari is DENIED and the decision of the Commission on
Audit, dated September 21, 2000, as well as its resolution, dated January 30, 2001, is
AFFIRMED.
SO ORDERED.
RIGHT TO COMPENSATION
G.R. Nos. 98395-102449 June 19, 1995
GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner,
vs.
CIVIL SERVICE COMMISSION and DR. MANUEL BARADERO, respondents.
GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner,
vs.
CIVIL SERVICE COMMISSION and MATILDE S. BELO, respondents.
KAPUNAN, J.:
In our decision dated October 28, 1994 we held that government service rendered on a per
diem basis is not creditable in computing the length of service for retirement purposes. Thus, we
reversed the questioned resolutions and orders of the Civil Service Commission (CSC) requiring
the Government Service Insurance System (GSIS) to consider creditable the services of private
respondents on a per diem basis.
However, private respondent Matilde S. Belo in G.R. No 102449 filed a motion for
reconsideration dated 17 November 1994, of this Court 's decision of October 28, 1994. She
insists that the services rendered by her as Vice Governor of Capiz, between December 31,
1975 to January 1, 1979, be considered as creditable for purposes of retirement. The
Government Service Insurance System likewise filed a motion for reconsideration on November
22, 1984 in behalf of both private respondents Belo and Dr. Manuel Baradero on essentially the
same grounds. We shall deal with both motions together.
Central to the averments on the aforestated motions for reconsideration is the question of
whether or not regular service in government on a per diem basis, without any other form of
compensation or emolument, is compensation within the contemplation of the term "service with
compensation" under the Government Service Insurance Act of 1987.
After a careful consideration of the arguments in both motions, we are compelled to reconsider
our decision.
While what respondents Belo and Baradero received were denominated as "per diem," the
amounts received were actually in the nature of a compensation or pay. What should therefore
be considered as controlling in both cases would be the nature of remuneration, not the label
attached to it.
Respondent Belo held the position of Vice-Governor of Capiz continuously between January 5,
1972 up to February 1, 1988. From January 25, 1972 up to December 31, 1979, she held office
by virtue of an election and was paid a fixed salary.1 From December 31, 1979 up to February 1,
1988, she held the position of Vice Governor of Capiz in a holdover capacity, broken down into
two periods: 2
1. A period in which she was paid on a per diem basis from December 31, 1976
to December 31, 1979; and
2. A period in which she was paid a fixed salary — from January 1, 1980 to
February 1,1988.
In its June 7, 1989 Resolution3 on the matter, CSC held that the services rendered for the first
holdover period between January 31, 1976 to January 1, 1979 was creditable for purposes of
retirement. CSC noted that during the entire holdover period, respondent Belo actually served on
a full time basis as Vice Governor and was on call 24 hours a day. Disagreeing with the CSC's
insistence that the period in which respondent Belo was paid on a per diem basis should be
credited in computing the number of years of creditable service to the government, GSIS
subsequently filed a petition for certiorari before this court, questioning the orders of the CSC.
Agreeing that per diems were not compensation within the meaning of Section 1(c) of R.A. 1573
which amended Section 1(c) of C.A. No. 186 (Government Service Insurance Act), we granted
the petitions in G.R. Nos. 98395 and 102449,4 and reversed the CSC Orders and Resolutions in
question.
A review of the circumstances surrounding payment to respondent Belo of the per diems in
question convinces us that her motion is meritorious. We are convinced that the "per diem" she
received was actually paid for in the performance of her duties as Vice-Governor of Capiz in a
holdover capacity not as the per diem referred to by section 1(c) of R.A. No 1573 which
amended Section 1(c) of C.A. No. 186 (Government Insurance Service Act). A closer look at the
aforecited provision, moreover, reveals a legislative intent to make a clear distinction between
salary, pay or compensation, on one hand, and other incidental allowances, including per
diems on the other. Section 1(c) provides:
(c) Salary, pay or compensation shall be construed as to exclude all
bonuses, per diems, allowances and overtime pay, or salary, pay or
compensation given to the base pay of the position or rank as fixed by law or
regulations. 5
Since it is generally held that an allowance for expenses incident to the discharge of an office is
not a salary of office,6 it follows that if the remuneration received by a public official in the
performance of his duties does not constitute a mere "allowance for expenses" but appears to be
his actual base pay, then no amount of categorizing the salary as base pay, a "per diem" would
take the allowances received by petitioner from the term service with compensation for the
purpose of computing the number of years of service in government. Furthermore, it would
grossly violate the law's intent to reward the public servant's years of dedicated service to
government for us to gloss over the circumstances surrounding the payment of the said
remunerations to the petitioner in taking a purely mechanical approach to the problem by
accepting an attached label at face value.
In G.R. No. 98395, the period disputed was served by respondent Baradero as a member of the
Sangguniang Bayan of the Municipality of La Castellana, Negros Occidental between January 1,
1976 to October 10, 1978 where he was likewise paid on a per diem basis. It is not disputed that
during this period, respondent Baradero rendered full services to the government as a member
of the Sangguniang Bayan. In fact, on the basis of its earlier resolution on the case of
respondent Belo, the Civil Service Commission recognized the period in which respondent
Baradero served as a member of the Sangguniang Bayan as creditable for retirement purposes
instead of allowing his petition for extension of service in order to complete the 15 year period of
service required for the purpose of qualifying for retirement benefits.7
In the sense in which the phrase "per diem" is used under the Government Service Insurance
Law, a per diem is a daily allowance given for each day an officer or employee of government is
away from his home base.8 This is its traditional meaning: its usual signification is as a
reimbursement for extra expenses incurred by the public official in the performance of his
duties.9 Under this definition the per diem intended to cover the cost of lodging and subsistence
of officers and employees when the latter are on duty outside of their permanent station. 10
On the other hand, a per diem could rightfully be considered a compensation or remuneration
attached to an office. 11 Under the circumstances obtaining in the case of respondent Belo
the per diems received by her during the period that she acted in holdover capacity obviously
were in the nature of compensation or remuneration for her services as Vice Governor of the
Province of Capiz, rather than as a reimbursement for incidental expenses incurred while away
from her home base. In connection with this, it is important to lay stress to the following facts:
1. Petitioner rendered service to the government continuously from January 25,
1972 to February 1, 1988 as Vice Governor of the Province of Capiz. During a
portion of the holdover-period, i.e., from December 31, 1976 to January 11 1979,
payment for her services to the government was through per diems for every
regular or special session of the Sangguniang Panlalawigan attended. 12
2. The CSC noted that: "[F]ormer Vice Governor Belo was on a full time basis
when she served . . . on a hold-over capacity. . . As such provincial official she is
(sic) legally and factually on call by the provincial people and the province more
than eight hours a day, or at any time of the day beyond the prescribed working
hours.
3. She received no other forms of remuneration during the disputed period. 13
The same could be said of the services rendered by respondent Baradero, who, before and after
the period in question had an unblemished record of service to the government as a member of
the army and as a medical officer of the Philippine Medicare Commission. The disputed period
was served on a full-time basis regardless of the denomination given to the compensation
received by him.
What ought to be controlling in the cases at bench therefore, should be the nature of the
remuneration rather than the label attached to it. While there is no dispute that the law
excepting per diems from the definition of compensation is clear and requires no interpretation,
however, since the term per diem may be construed either as compensation or as allowance, it
would be necessary for us to inquire whether the term per diem in the GSIS Law refers to one or
the other signification. As explained above, it is plainly obvious that per diem as compensation,
is not what the law contemplates. The clear intent of the Government Insurance Law was to
exclude those extra incidental expenses or incurred on a daily basis covered by the traditional
definition of the term per diem. An important fact missed from our earlier decision was that, while
respondent Belo was paid on a per diem basis during her first holdover period as Vice Governor
she was subsequently paid a fixed salary, which apparently rectified an otherwise anomalous
situation. The services rendered by respondent Belo having been continuous, the disputed
period should be credited for purposes of retirement.
On the other hand, respondent Baradero was willing to serve two additional years of service to
government in order to complete the 15 year period required by our retirement laws. The Civil
Service Commission felt this was unnecessary and denied the same on the ground that the
period served on a per diem basis, was, like the disputed period in the Belo case, creditable. 14
The distinctions between salary and per diem made hereinabove were in fact adverted to in our
original decision dated October 28, 1994. In explaining the allowance of service rendered on
a per diem basis in the case of Inocencio vs. Ferrer of the Social Security System, we noted with
approval the Government Service Insurance System's explanation that the per diem service
which was credited for purposes of retirement was Commissioner Ferrer's full time service as
Hearing Officer not his per diem service for attendance at Board Meetings. Even then, we
indirectly noted the difference between per diem paid as compensation for services rendered on
a full time basis and per diem as allowance for incidental expenses. Respondent Belo asserts,
with reason, that the per diems paid to her, while reckoned on the basis of attendance in Board
Meetings, were for her full time services as Vice Governor of the Province of Capiz. In fact, the
same service, albeit still on a holdover basis, was eventually paid with a fixed salary.
Retirement benefits given to government employees in effect reward them for giving the best
years of their lives to the service of their country. This is especially true with those in government
service occupying positions of leadership or positions requiring management skills because the
years they devote to government service could be spent more profitably in lucrative
appointments in the private sector. In exchange for their selfless dedication to government
service, they enjoy security of tenure and are ensured of a reasonable amount of support after
they leave the government. The basis for the provision of retirement benefits is, therefore,
service to government. While a government insurance system rationalizes the management of
funds necessary to keep this system of retirement support afloat and is partly dependent on
contributions made by the thousands of members of the system, the fact that these contributions
are minimal when compared to the amount of retirement benefits actually received shows that
such contributions, while necessary, are not absolutely determinative in drawing up criteria for
those who would qualify as recipients of the retirement benefit system.
It cannot be convincingly asserted that petitioners could not avail themselves of the benefits of
the policy because no deductions were made from their salaries during the disputed periods
when they were paid on a per diem basis. In respondent Belo's case, before and after that short
interregnum, she was paid a fixed salary. She was not duly informed that short period was not to
be credited in computing the length of her service for retirement purposes. She assumed in all
good faith that she continued to be covered by the GSIS insurance benefits considering that in
fact and in practice the deductions are virtually mandatorily made from all government
employees on an essentially involuntary basis. Similarly, had respondent Baradero been
informed of the need to pay the required deductions for the purpose of qualifying for retirement
benefits, he would have willingly paid the required sums. In a sense, the contract made between
the GSIS and the government employee is done on a take-it-or-leave-it basis, that is, it is a
virtual contract of adhesion which gives the employee no choice but to involuntarily accede to
the deductions made from their oftentimes meager salaries. If the GSIS did not deduct, it was by
its own choice: contributions were exacted from petitioner before and after the disputed period.
To assert that petitioners would have been entitled to benefits had they opted for optional
deductions at that point misses the principal fact in issue here, which is the question as to
whether or not the disputed periods should be credited as service with compensation for the
purposes of retirement.
Moreover, the source of GSIS benefits is not in essence merely contractual; rather, it is a social
legislation as clearly indicated in the "whereas" of Presidential Decree No. 1146, to wit:
WHEREAS, provisions of existing laws that have prejudiced, rather than
benefited, the government employee; restricted, rather than broadened, his
benefits, prolonged, rather than facilitated the payment of benefits, must now
yield to his paramount welfare;
WHEREAS, the social security and insurance benefits of government employees
must be continuously re-examined and improved to assure comprehensive and
integrated social security and insurance programs that will provide benefits
responsive to their needs and those of their dependents in the event of sickness,
disability, death, retirement, and other contingencies; and to serve as a fitting
reward for dedicated public service;
WHEREAS, in the light existing economic conditions affecting the welfare of
government employees there is a need to expand and improve the social security
and insurance programs administered by the Government Service Insurance
Systems, specifically, among others, by increasing pension benefits, expanding
 disability benefits, introducing survivorship benefits, introducing sickness income
benefits, and eventually extending the compulsory coverage of these programs
to all government employees regardless of employment status.
The situation as far as private respondents and the GSIS are concerned could be rectified by
deducting a reasonable amount corresponding to the contributions which should have been
deducted during the period from the amount of retirement benefits accruing to them. It would be
grossly inequitable — as it would violate the spirit of the government retirement and insurance
laws — to permanently penalize both respondents Belo and Baradero by ignoring the fact of
actual period of service to government with compensation, and deny them the retirement
privileges that they, for their unselfish service to the government justly deserve. Under the
peculiar circumstances of the case at bench, the demand for equity prompts us to regard spirit
not letter, and intent, not form, in according substantial justice to both respondents, where the
law, through its inflexible rules might prove inadequate.
WHEREFORE, the instant motion is hereby GRANTED, our decision dated October 28, 1994
RECONSIDERED and the questioned resolutions and orders of the CSC requiring GSIS to
consider creditable the services of private respondents on a per diem basis AFFIRMED.
SO ORDERED.
PROMOTION
G.R. No. 192791 April 24, 2012
DENNIS A. B. FUNA, Petitioner,
vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, Respondent.
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on
Audit and accordingly prays that a judgment issue "declaring the unconstitutionality" of the
appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo)
appointed Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for
a term of seven (7) years, pursuant to the 1987 Constitution.1 Carague’s term of office started on
February 2, 2001 to end on February 2, 2008.
Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar
(Villar) as the third member of the COA for a term of seven (7) years starting February 2, 2004
until February 2, 2011.
Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as
COA Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to
April 14, 2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as
Chairman of the COA. Shortly thereafter, on June 11, 2008, the Commission on Appointments
confirmed his appointment. He was to serve as Chairman of COA, as expressly indicated in the
appointment papers, until the expiration of the original term of his office as COA Commissioner
or on February 2, 2011. Challenged in this recourse, Villar, in an obvious bid to lend color of title
to his hold on the chairmanship, insists that his appointment as COA Chairman accorded him a
fresh term of seven (7) years which is yet to lapse. He would argue, in fine, that his term of
office, as such chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008
when he was appointed to that position.
Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA
Commissioner to serve the unexpired term of Villar as Commissioner or up to February 2, 2011.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011
addressed to President Benigno S. Aquino III, signified his intention to step down from office
upon the appointment of his replacement. True to his word, Villar vacated his position when
President Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan (Chairman Tan) COA
Chairman. This development has rendered this petition and the main issue tendered therein
moot and academic.
case is considered moot and academic when its purpose has become stale,2 or when it ceases to
present a justiciable controversy owing to the onset of supervening events,3 so that a resolution
of the case or a declaration on the issue would be of no practical value or use.4 In such instance,
there is no actual substantial relief which a petitioner would be entitled to, and which will anyway
be negated by the dismissal of the basic petition.5 As a general rule, it is not within Our charge
and function to act upon and decide a moot case. However, in David v. Macapagal-Arroyo,6 We
acknowledged and accepted certain exceptions to the issue of mootness, thus:
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution, second, the exceptional character of the situation and the
paramount public interest is involved, third, when constitutional issue raised requires formulation
of controlling principles to guide the bench, the bar, and the public, and fourth, the case is
capable of repetition yet evading review.
Although deemed moot due to the intervening appointment of Chairman Tan and the resignation
of Villar, We consider the instant case as falling within the requirements for review of a moot and
academic case, since it asserts at least four exceptions to the mootness rule discussed in David,
namely: there is a grave violation of the Constitution; the case involves a situation of exceptional
character and is of paramount public interest; the constitutional issue raised requires the
formulation of controlling principles to guide the bench, the bar and the public; and the case is
capable of repetition yet evading review.7 The situation presently obtaining is definitely of such
exceptional nature as to necessarily call for the promulgation of principles that will henceforth
"guide the bench, the bar and the public" should like circumstance arise. Confusion in similar
future situations would be smoothed out if the contentious issues advanced in the instant case
are resolved straightaway and settled definitely. There are times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be addressed. To borrow from Javier v.
Pacificador,8 "Justice demands that we act then, not only for the vindication of the outraged right,
though gone, but also for the guidance of and as a restraint in the future."
Both procedural and substantive issues are raised in this proceeding. The procedural aspect
comes down to the question of whether or not the following requisites for the exercise of judicial
review of an executive act obtain in this petition, viz: (1) there must be an actual case or
justiciable controversy before the court; (2) the question before it must be ripe for adjudication;
(3) the person challenging the act must be a proper party; and (4) the issue of constitutionality
must be raised at the earliest opportunity and must be the very litis mota of the case.9
To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing
as a taxpayer and citizen, lacks the necessary standing to challenge his appointment.10 On the
other hand, the Office of the Solicitor General (OSG), while recognizing the validity of Villar’s
appointment for the period ending February 11, 2011, has expressed the view that petitioner
should have had filed a petition for declaratory relief or quo warranto under Rule 63 or Rule 66,
respectively, of the Rules of Court instead of certiorari under Rule 65.
Villar’s posture on the absence of some of the mandatory requisites for the exercise by the Court
of its power of judicial review must fail. As a general rule, a petitioner must have the necessary
personality or standing (locus standi) before a court will recognize the issues presented. In
Integrated Bar of the Philippines v. Zamora, We defined locus standi as:
x x x a personal and substantial interest in the case such that the party has sustained or will
sustain a direct injury as a result of the governmental act that is being challenged. The term
"interest" means a material interest, an interest in issue affected by the decree, as distinguished
from mere interest in the question involved, or a mere incidental interest. The gist of the question
of standing is whether a party alleges "such personal stake in the outcome of the controversy as
to assure the concrete adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions."11
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act.12 However, the Court has time and again acted liberally on
the locus standi requirements and has accorded certain individuals, not otherwise directly
injured, or with material interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake.13 The rule on locus standi is after all a mere
procedural technicality in relation to which the Court, in a catena of cases involving a subject of
transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may
not have been personally injured by the operation of a law or any other government act.14 In
David, the Court laid out the bare minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes
their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching
implications," and there is a need to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to
institute the instant petition.
Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety
of the availment of certiorari as a medium to inquire on whether the assailed appointment of
respondent Villar as COA Chairman infringed the constitution or was infected with grave abuse
of discretion. For under the expanded concept of judicial review under the 1987 Constitution, the
corrective hand of certiorari may be invoked not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government."15 "Grave abuse of discretion" denotes:
such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words, where the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation of law.16
We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave
abuse of discretion.
This brings Us to the pivotal substantive issue of whether or not Villar’s appointment as COA
Chairman, while sitting in that body and after having served for four (4) years of his seven (7)
year term as COA commissioner, is valid in light of the term limitations imposed under, and the
circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without reappointment.
Of those first appointed, the Chairman shall hold office for seven years, one commissioner for
five years, and the other commissioner for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case
shall any member be appointed or designated in a temporary or acting capacity. (Emphasis
added.)17
And if valid, for how long can he serve?
At once clear from a perusal of the aforequoted provision are the defined restricting features in
the matter of the composition of COA and the appointment of its members (commissioners and
chairman) designed to safeguard the independence and impartiality of the commission as a body
and that of its individual members.18 These are, first, the rotational plan or the staggering term in
the commission membership, such that the appointment of commission members subsequent to
the original set appointed after the effectivity of the 1987 Constitution shall occur every two
years; second, the maximum but a fixed term-limit of seven (7) years for all commission
members whose appointments came about by reason of the expiration of term save the
aforementioned first set of appointees and those made to fill up vacancies resulting from certain
causes; third, the prohibition against reappointment of commission members who served the full
term of seven years or of members first appointed under the Constitution who served their
respective terms of office; fourth, the limitation of the term of a member to the unexpired portion
of the term of the predecessor; and fifth, the proscription against temporary appointment or
designation.
To elucidate on the mechanics of and the adverted limitations on the matter of COA-member
appointments with fixed but staggered terms of office, the Court lays down the following
postulates deducible from pertinent constitutional provisions, as construed by the Court:
1. The terms of office and appointments of the first set of commissioners, or the seven,
five and three-year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had
already expired. Hence, their respective terms of office find relevancy for the most part
only in understanding the operation of the rotational plan. In Gaminde v. Commission on
Audit,19 the Court described how the smooth functioning of the rotational system
contemplated in said and like provisions covering the two other independent
commissions is achieved thru the staggering of terms:
x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional
Commissions under the 1987 Constitution must start on a common date [February 02,
1987, when the 1987 Constitution was ratified] irrespective of the variations in the dates
of appointments and qualifications of the appointees in order that the expiration of the
first terms of seven, five and three years should lead to the regular recurrence of the two-
year interval between the expiration of the terms.
x x x In case of a belated appointment, the interval between the start of the terms and the
actual appointment shall be counted against the appointee.20 (Italization in the original;
emphasis added.)
Early on, in Republic v. Imperial,21 the Court wrote of two conditions, "both
indispensable to [the] workability" of the rotational plan. These conditions may be
described as follows: (a) that the terms of the first batch of commissioners should
start on a common date; and (b) that any vacancy due to death, resignation or
disability before the expiration of the term should be filled only for the unexpired
balance of the term. Otherwise, Imperial continued, "the regularity of the intervals
between appointments would be destroyed." There appears to be near unanimity
as to the purpose/s of the rotational system, as originally conceived, i.e., to place
in the commission a new appointee at a fixed interval (every two years
presently), thus preventing a four-year administration appointing more than one
permanent and regular commissioner,22 or to borrow from Commissioner Monsod
of the 1986 CONCOM, "to prevent one person (the President of the Philippines)
from dominating the commissions."23 It has been declared too that the rotational
plan ensures continuity in, and, as indicated earlier, secure the independence of,
the commissions as a body.24
2. An appointment to any vacancy in COA, which arose from an expiration of a term,
after the first chairman and commissioners appointed under the 1987 Constitution have
bowed out, shall, by express constitutional fiat, be for a term of seven (7) years, save
when the appointment is to fill up a vacancy for the corresponding unserved term of an
 outgoing member. In that case, the appointment shall only be for the unexpired portion of
the departing commissioner’s term of office. There can only be an unexpired portion
when, as a direct result of his demise, disability, resignation or impeachment, as the case
may be, a sitting member is unable to complete his term of office.25 To repeat, should the
vacancy arise out of the expiration of the term of the incumbent, then there is technically
no unexpired portion to speak of. The vacancy is for a new and complete seven-year
term and, ergo, the appointment thereto shall in all instances be for a maximum seven
(7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the "reappointment" of a
member of COA after his appointment for seven (7) years. Writing for the Court in
Nacionalista Party v. De Vera,26 a case involving the promotion of then COMELEC
Commissioner De Vera to the position of chairman, then Chief Justice Manuel Moran
called attention to the fact that the prohibition against "reappointment" comes as a
continuation of the requirement that the commissioners––referring to members of the
COMELEC under the 1935 Constitution––shall hold office for a term of nine (9) years.
This sentence formulation imports, notes Chief Justice Moran, that reappointment is not
an absolute prohibition.
4. The adverted system of regular rotation or the staggering of appointments and terms
in the membership for all three constitutional commissions, namely the COA,
Commission on Elections (COMELEC) and Civil Service Commission (CSC) found in the
1987 Constitution was patterned after the amended 1935 Constitution for the
appointment of the members of COMELEC27 with this difference: the 1935 version
entailed a regular interval of vacancy every three (3) years, instead of the present two (2)
years and there was no express provision on appointment to any vacancy being limited
to the unexpired portion of the his predecessor’s term. The model 1935 provision reads:
Section 1. There shall be an independent Commission on Elections composed of a Chairman
and two other members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine years, another for six
years and the third for three years. x x x
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be
it for the same position (commissioner to another position of commissioner) or upgraded position
(commissioner to chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is
drawn in this regard to the Court’s disposition in Matibag v. Benipayo.28
Villar’s promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a
different office and requiring another confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2),
Article IX(D) of the Constitution on the ban against reappointment in relation to the appointment
issued to respondent Villar to the position of COA Chairman.
Without question, the parties have presented two (2) contrasting and conflicting positions.
Petitioner contends that Villar’s appointment is proscribed by the constitutional ban on
reappointment under the aforecited constitutional provision. On the other hand, respondent Villar
initially asserted that his appointment as COA Chairman is valid up to February 2, 2015 pursuant
to the same provision.
The Court finds petitioner’s position bereft of merit. The flaw lies in regarding the word
"reappointment" as, in context, embracing any and all species of appointment.
The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it
must be given its literal meaning and applied without attempted interpretation.29 This is known as
the plain meaning rule enunciated by the maxim verba legis non est recedendum, or from the
words of a statute there should be no departure.30
The primary source whence to ascertain constitutional intent or purpose is the language of the
provision itself.31 If possible, the words in the Constitution must be given their ordinary meaning,
save where technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure
Administration illustrates the verbal legis rule in this wise:
We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution is not primarily a lawyer’s
document, it being essential for the rule of law to obtain that it should ever be present in the
people’s consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus there are cases where the need for
construction is reduced to a minimum.32 (Emphasis supplied.)
Let us dissect and examine closely the provision in question:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without reappointment.
Of those first appointed, the Chairman shall hold office for seven years, one commissioner for
five years, and the other commissioner for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired portion of the term of the predecessor. x x x
(Emphasis added.)
The first sentence is unequivocal enough. The COA Chairman shall be appointed by the
President for a term of seven years, and if he has served the full term, then he can no longer be
reappointed or extended another appointment. In the same vein, a Commissioner who was
appointed for a term of seven years who likewise served the full term is barred from being
reappointed. In short, once the Chairman or Commissioner shall have served the full term of
seven years, then he can no longer be reappointed to either the position of Chairman or
Commissioner. The obvious intent of the framers is to prevent the president from "dominating"
the Commission by allowing him to appoint an additional or two more commissioners.
The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention
barred reappointment to be extended to commissioner-members first appointed under the 1987
Constitution to prevent the President from controlling the commission. Thus, the first Chairman
appointed under the 1987 Constitution who served the full term of seven years can no longer be
extended a reappointment. Neither can the Commissioners first appointed for the terms of five
years and three years be eligible for reappointment. This is the plain meaning attached to the
second sentence of Sec. 1(2), Article IX(D).
On the other hand, the provision, on its face, does not prohibit a promotional appointment from
commissioner to chairman as long as the commissioner has not served the full term of seven
years, further qualified by the third sentence of Sec. 1(2), Article IX (D) that "the appointment to
any vacancy shall be only for the unexpired portion of the term of the predecessor." In addition,
such promotional appointment to the position of Chairman must conform to the rotational plan or
the staggering of terms in the commission membership such that the aggregate of the service of
the Commissioner in said position and the term to which he will be appointed to the position of
Chairman must not exceed seven years so as not to disrupt the rotational system in the
commission prescribed by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated
circumstances or conditions.
It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched,
allows a promotional appointment from Commissioner to Chairman. Even if We concede the
existence of an ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.33 teaches
that in case of doubt as to the import and react of a constitutional provision, resort should be
made to extraneous aids of construction, such as debates and proceedings of the Constitutional
Convention, to shed light on and ascertain the intent of the framers or the purpose of the
provision being construed.
The understanding of the Convention as to what was meant by the terms of the constitutional
provision which was the subject of the deliberation goes a long way toward explaining the
understanding of the people when they ratified it. The Court applied this principle in Civil
Liberties Union v. Executive Secretary:
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was framed. The object
is to ascertain the reason which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to construe the whole as
to make the words consonant to that reason and calculated to effect that purpose.34 (Emphasis
added.)
And again in Nitafan v. Commissioner on Internal Revenue:
x x x The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to ascertain
and thereafter assure the realization of the purpose of the framers and of the people in the
adoption of the Constitution. It may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the framers.35 (Emphasis added.)
Much weight and due respect must be accorded to the intent of the framers of the Constitution in
interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation where a commissioner is
upgraded to the position of chairman, the 1987 Constitution in fact unequivocally allows
promotional appointment, but subject to defined parameters. The ensuing exchanges during the
deliberations of the 1986 Constitutional Commission (CONCOM) on a draft proposal of what
would eventually be Sec. 1(2), Art. IX(D) of the present Constitution amply support the thesis that
a promotional appointment is allowed provided no one may be in the COA for an aggregate
threshold period of 7 years:
MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the
sentence which begins with "In no case," insert THE APPOINTEE SHALL IN NO CASE SERVE
AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may
approximate the situation wherein a commissioner is first appointed as chairman. I am willing to
withdraw that amendment if there is a representation on the part of the Committee that there is
an implicit intention to prohibit a term that in the aggregate will exceed more than seven years. If
that is the intention, I am willing to withdraw my amendment.
MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole there is no way somebody can serve for
more than seven years. The purpose of the last sentence is to make sure that this does not
happen by including in the appointment both temporary and acting capacities.
MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation
wherein a commissioner is upgraded to a position of chairman. But if this provision is intended to
cover that kind of situation, then I am willing to withdraw my amendment.
MR. MONSOD. It is covered.
MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: "Appointment
to any vacancy shall be only for the unexpired portion of the predecessor." In other words, if
there is upgrading of position from commissioner to chairman, the appointee can serve only the
unexpired portion of the term of the predecessor.
MS. AQUINO: But we have to be very specific x x x because it might shorten the term because
he serves only the unexpired portion of the term of the predecessor.
MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired
portion of the term of the predecessor. (Emphasis added.)36
The phrase "upgrading of position" found in the underscored portion unmistakably shows that
Sec. 1(2), Art. IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not
per se preclude, in any and all cases, the promotional appointment or upgrade of a
commissioner to chairman, subject to this proviso: the appointee’s tenure in office does not
exceed 7 years in all. Indeed, such appointment does not contextually come within the restricting
phrase "without reappointment" twice written in that section. Delegate Foz even cautioned, as a
matter of fact, that a sitting commissioner accepting a promotional appointment to fill up an
unexpired portion pertaining to the higher office does so at the risk of shortening his original
term. To illustrate the Foz’s concern: assume that Carague left COA for reasons other than the
expiration of his threshold 7-year term and Villar accepted an appointment to fill up the vacancy.
In this situation, the latter can only stay at the COA and served the unexpired portion of
Carague’s unexpired term as departing COA Chairman, even if, in the process, his (Villar’s) own
7-year term as COA commissioner has not yet come to an end. In this illustration, the inviolable
regularity of the intervals between appointments in the COA is preserved.
Moreover, jurisprudence tells us that the word "reappointment" means a second appointment to
one and the same office.37 As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent
in Visarra v. Miraflor,38 the constitutional prohibition against the reappointment of a commissioner
refers to his second appointment to the same office after holding it for nine years.39 As Justice
Dizon observed, "[T]he occupant of an office obviously needs no such second appointment
unless, for some valid cause, such as the expiration of his term or resignation, he had ceased to
be the legal occupant thereof." 40 The inevitable implication of Justice Dizon’s cogent observation
is that a promotion from commissioner to chairman, albeit entailing a second appointment,
involves a different office and, hence, not, in the strict legal viewpoint, a reappointment. Stated a
bit differently, "reappointment" refers to a movement to one and the same office. Necessarily, a
movement to a different position within the commission (from Commissioner to Chairman) would
constitute an appointment, or a second appointment, to be precise, but not reappointment.
A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo
Bautista, although he expressly alluded to a promotional appointment as not being a prohibited
appointment under Art. X of the 1935 Constitution.
Petitioner’s invocation of Matibag as additional argument to contest the constitutionality of Villar’s
elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo
appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and
Florentino Tuason as Commissioners, each for a term of office of seven (7) years. All three
immediately took their oath of, and assumed, office. These appointments were twice renewed
because the Commission on Appointments failed to act on the first two ad interim appointments.
Via a petition for prohibition, some disgruntled COMELEC officials assail as infirm the
appointments of Benipayo, et al.
Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be
specific, where the proviso "[t]he Chairman and the Commissioners shall be appointed x x x for a
term of seven years without reappointment" shall apply. Justice Antonio T. Carpio declares in his
dissent that Villar’s appointment falls under a combination of two of the four situations.
Conceding for the nonce the correctness of the premises depicted in the situations referred to in
Matibag, that case is of doubtful applicability to the instant petition. Not only is it cast against a
different milieu, but the lis mota of the case, as expressly declared in the main opinion, "is the
very constitutional issue raised by petitioner."41 And what is/are this/these issue/s? Only two
defined issues in Matibag are relevant, viz: (1) the nature of an ad interim appointment and
subsumed thereto the effect of a by-passed ad interim appointment; and (2) the constitutionality
of renewals of ad interim appointments. The opinion defined these issues in the following wise:
"Petitioner [Matibag] filed the instant petition questioning the appointment and the right to remain
in office of Benipayo, Borra and Tuason as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of Benipayo, et al. violate the
constitutional provisions on the independence of COMELEC, as well as on the prohibitions on
temporary appointments and reappointments of its Chairman and members." As may distinctly
be noted, an upgrade or promotion was not in issue in Matibag.
We shall briefly address the four adverted situations outlined in Matibag, in which, as there
urged, the uniform proviso on no reappointment––after a member of any of the three
constitutional commissions is appointed for a term of seven (7) years––shall apply. Matibag
made the following formulation:
The first situation is where an ad interim appointee after confirmation by the Commission on
Appointments serves his full 7-year term. Such person cannot be reappointed whether as a
member or as chairman because he will then be actually serving more than seven (7) years.
The second situation is where the appointee, after confirmation, serves part of his term and then
resigns before his seven-year term of office ends. Such person cannot be reappointed whether
as a member or as chair to a vacancy arising from retirement because a reappointment will
result in the appointee serving more than seven years.
The third situation is where the appointee is confirmed to serve the unexpired portion of
someone who died or resigned, and the appointee completes the unexpired term. Such person
cannot be reappointed whether as a member or as chair to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven (7) years.
The fourth situation is where the appointee has previously served a term of less than seven (7)
years, and a vacancy arises from death or resignation. Even if it will not result in his serving
more than seven years, a reappointment of such person to serve an unexpired term is also
prohibited because his situation will be similar to those appointed under the second sentence of
Sec. 1(20), Art. IX-C of the Constitution [referring to the first set of appointees (the 5 and 3 year
termers) whose term of office are less than 7 years but are barred from being reappointed under
any situation]."42 (Words in brackets and emphasis supplied.)
The situations just described constitute an obiter dictum, hence without the force of adjudication,
for the corresponding formulation of the four situations was not in any way necessary to resolve
any of the determinative issues specifically defined in Matibag. An opinion entirely unnecessary
for the decision of the case or one expressed upon a point not necessarily involved in the
determination of the case is an obiter.43
There can be no serious objection to the scenarios depicted in the first, second and third
situations, both hewing with the proposition that no one can stay in any of the three independent
commissions for an aggregate period of more than seven (7) years. The fourth situation,
however, does not commend itself for concurrence inasmuch as it is basically predicated on the
postulate that reappointment, as earlier herein defined, of any kind is prohibited under any and
all circumstances. To reiterate, the word "reappointment" means a second appointment to one
and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar provisions do
not peremptorily prohibit the promotional appointment of a commissioner to chairman, provided
the new appointee’s tenure in both capacities does not exceed seven (7) years in all. The
statements in Matibag enunciating the ban on reappointment in the aforecited fourth situation,
perforce, must be abandoned, for, indeed, a promotional appointment from the position of
Commissioner to that of Chairman is constitutionally permissible and not barred by Sec. 1(2),
Art. IX (D) of the Constitution.
One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and
preserve the independence of COA and its members,44 citing what the dissenting Justice J.B.L
Reyes wrote in Visarra, that once appointed and confirmed, the commissioners should be free to
act as their conscience demands, without fear of retaliation or hope or reward. Pursued to its
logical conclusion, petitioner’s thesis is that a COA member may no longer act with
independence if he or she can be rewarded with a promotion or appointment, for then he or she
will do the bidding of the appointing authority in the hope of being promoted or reappointed.
The unstated reason behind Justice J.B.L. Reyes’ counsel is that independence is really a
matter of choice. Without taking anything away from the gem imparted by the eminent jurist,
what Chief Justice Moran said on the subject of independence is just as logically sound and
perhaps even more compelling, as follows:
A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or
other hope of material reward, his enthusiasm may decline as the end of his term approaches
and he may even lean to abuses if there is no higher restrain in his moral character. Moral
character is no doubt the most effective safeguard of independence. With moral integrity, a
commissioner will be independent with or without the possibility of reappointment.45
The Court is likewise unable to sustain Villar’s proposition that his promotional appointment as
COA Chairman gave him a completely fresh 7-year term––from February 2008 to February
2015––given his four (4)-year tenure as COA commissioner devalues all the past
pronouncements made by this Court, starting in De Vera, then Imperial, Visarra, and finally
Matibag. While there had been divergence of opinion as to the import of the word
"reappointment," there has been unanimity on the dictum that in no case can one be a COA
member, either as chairman or commissioner, or a mix of both positions, for an aggregate term
of more than 7 years. A contrary view would allow a circumvention of the aggregate 7-year
service limitation and would be constitutionally offensive as it would wreak havoc to the spirit of
the rotational system of succession. Imperial, passing upon the rotational system as it applied to
the then organizational set-up of the COMELEC, stated:
The provision that of the first three commissioners appointed "one shall hold office for 9 years,
another for 6 years and the third for 3 years," when taken together with the prescribed term of
office for 9 years without reappointment, evinces a deliberate plan to have a regular rotation or
cycle in the membership of the commission, by having subsequent members appointable only
once every three years.46
To be sure, Villar’s appointment as COA Chairman partakes of a promotional appointment
which, under appropriate setting, would be outside the purview of the constitutional
reappointment ban in Sec 1(2), Art. IX(D) of the Constitution. Nonetheless, such appointment,
even for the term appearing in the underlying appointment paper, ought still to be struck down as
unconstitutional for the reason as shall be explained.
Consider:
In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a
COA member shall be for a fixed 7-year term if the vacancy results from the expiration of the
term of the predecessor. We reproduce in its pertinent part the provision referred to:
(2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven
years without reappointment. x x x Appointment to any vacancy shall be only for the unexpired
portion of the term of the predecessor. x x x
Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of
less than seven (7) years is void for violating a clear, but mandatory constitutional prescription.
There can be no denying that the vacancy in the position of COA chairman when Carague
stepped down in February 2, 2008 resulted from the expiration of his 7-year term. Hence, the
appointment to the vacancy thus created ought to have been one for seven (7) years in line with
the verbal legis approach47 of interpreting the Constitution. It is to be understood, however,
following Gaminde, that in case of a belated appointment, the interval between the start of the
term and the actual appointment shall be counted against the 7-year term of the appointee.
Posing, however, as an insurmountable barrier to a full 7-year appointment for Villar is the rule
against one serving the commission for an aggregate term of more than seven (7) years.
Where the Constitution or, for that matter, a statute, has fixed the term of office of a public
official, the appointing authority is without authority to specify in the appointment a term shorter
or longer than what the law provides. If the vacancy calls for a full seven-year appointment, the
President is without discretion to extend a promotional appointment for more or for less than
seven (7) years. There is no in between. He or she cannot split terms. It is not within the power
of the appointing authority to override the positive provision of the Constitution which dictates
that the term of office of members of constitutional bodies shall be seven (7) years.48 A contrary
reasoning "would make the term of office to depend upon the pleasure or caprice of the
[appointing authority] and not upon the will [of the framers of the Constitution] of the legislature
as expressed in plain and undoubted language in the law."49
In net effect, then President Macapagal-Arroyo could not have had, under any circumstance,
validly appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution
decrees, was not legally feasible in light of the 7-year aggregate rule. Villar had already served 4
years of his 7-year term as COA Commissioner. A shorter term, however, to comply with said
rule would also be invalid as the corresponding appointment would effectively breach the clear
purpose of the Constitution of giving to every appointee so appointed subsequent to the first set
of commissioners, a fixed term of office of 7 years. To recapitulate, a COA commissioner like
respondent Villar who serves for a period less than seven (7) years cannot be appointed as
chairman when such position became vacant as a result of the expiration of the 7-year term of
the predecessor (Carague). Such appointment to a full term is not valid and constitutional, as the
appointee will be allowed to serve more than seven (7) years under the constitutional ban.
On the other hand, a commissioner who resigned before serving his 7- year term can be
extended an appointment to the position of chairman for the unexpired period of the term of the
latter, provided the aggregate of the period he served as commissioner and the period he will
serve as chairman will not exceed seven (7) years. This situation will only obtain when the
chairman leaves the office by reason of death, disability, resignation or impeachment. Let us
consider, in the concrete, the situation of then Chairman Carague and his successor, Villar.
Carague was appointed COA Chairman effective February 2, 2001 for a term of seven (7) years,
or up to February 2, 2008. Villar was appointed as Commissioner on February 2, 2004 with a 7-
year term to end on February 2, 2011. If Carague for some reason vacated the chairmanship in
2007, then Villar can resign as commissioner in the same year and later be appointed as
chairman to serve only up to February 2, 2008, the end of the unexpired portion of Carague’s
term. In this hypothetical scenario, Villar’s appointment to the position of chairman is valid and
constitutional as the aggregate periods of his two (2) appointments will only be five (5) years
which neither distorts the rotational scheme nor violates the rule that the sum total of said
appointments shall not exceed seven (7) years. Villar would, however, forfeit two (2) years of his
original seven (7)-year term as Commissioner, since, by accepting an upgraded appointment to
Carague’s position, he agreed to serve the unexpired portion of the term of the predecessor. As
illustrated earlier, following Mr. Foz’s line, if there is an upgrading of position from commissioner
to chairman, the appointee takes the risk of cutting short his original term, knowing pretty well
before hand that he will serve only the unexpired portion of the term of his predecessor, the
outgoing COA chairman.
In the extreme hypothetical situation that Villar vacates the position of chairman for causes other
than the expiration of the original term of Carague, the President can only appoint the successor
of Villar for the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the
Constitution. Upon the expiration of the original 7-year term of Carague, the President can
appoint a new chairman for a term of seven (7) full years.
In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to
the view that the promotional appointment of a sitting commissioner is plausible only when he is
appointed to the position of chairman for the unexpired portion of the term of said official who
leaves the office by reason of any the following reasons: death, disability, resignation or
impeachment, not when the vacancy arises out as a result of the expiration of the 7-year term of
the past chairman. There is nothing in the Constitution, so Justice Mendoza counters, that
restricts the promotion of an incumbent commissioner to the chairmanship only in instances
where the tenure of his predecessor was cut short by any of the four events referred to. As
earlier explained, the majority view springs from the interplay of the following premises: The
explicit command of the Constitution is that the "Chairman and the Commissioners shall be
appointed by the President x x x for a term of seven years [and] appointment to any vacancy
shall be only for the unexpired portion of the term of the predecessor." To repeat, the President
has two and only two options on term appointments. Either he extends an appointment for a full
7-year term when the vacancy results from the expiration of term, or for a shorter period
corresponding to the unexpired term of the predecessor when the vacancy occurs by reason of
death, physical disability, resignation or impeachment. If the vacancy calls for a full seven-year
appointment, the Chief Executive is barred from extending a promotional appointment for less
than seven years. Else, the President can trifle with terms of office fixed by the Constitution.
Justice Mendoza likewise invites attention to an instance in history when a commissioner had
been promoted chairman after the expiration of the term of his predecessor, referring specifically
to the appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P.
Carag after the expiration of the latter’s term in 1959 as COMELEC chairman. Such appointment
to the position of chairman is not constitutionally permissible under the 1987 Constitution
because of the policy and intent of its framers that a COA member who has served his full term
of seven (7) years or even for a shorter period can no longer be extended another appointment
to the position of chairman for a full term of seven (7) years. As revealed in the deliberations of
the Constitutional Commission that crafted the 1987 Constitution, a member of COA who also
served as a commissioner for less than seven (7) years in said position cannot be appointed to
the position of chairman for a full term of seven (7) years since the aggregate will exceed seven
(7) years. Thus, the adverted Garcia appointment in 1959 made under the 1935 Constitution
cannot be used as a precedent to an appointment of such nature under the 1987 Constitution.
The dissent further notes that the upgrading remained uncontested. In this regard, suffice it to
state that the promotion in question was either legal or it was not. If it were not, no amount of
repetitive practices would clear it of invalidating taint.
Lastly, Villar’s appointment as chairman ending February 2, 2011 which Justice Mendoza
considers as valid is likewise unconstitutional, as it will destroy the rationale and policy behind
the rotational system or the staggering of appointments and terms in COA as prescribed in the
Constitution. It disturbs in a way the staggered rotational system of appointment under Sec. 1(2),
Art. IX(D) of the 1987 Constitution. Consider: If Villar’s term as COA chairman up to February 2,
2011 is viewed as valid and constitutional as espoused by my esteemed colleague, then two
vacancies have simultaneously occurred and two (2) COA members going out of office at once,
opening positions for two (2) appointables on that date as Commissioner San Buenaventura’s
term also expired on that day. This is precisely one of the mischiefs the staggering of terms and
the regular intervals appointments seek to address. Note that San Buenaventura was specifically
appointed to succeed Villar as commissioner, meaning she merely occupied the position vacated
by her predecessor whose term as such commissioner expired on February 2, 2011. The result
is what the framers of the Constitution doubtless sought to avoid, a sitting President with a 6-
year term of office, like President Benigno C. Aquino III, appointing all or at least two (2)
members of the three-man Commission during his term. He appointed Ma. Gracia Pulido-Tan as
Chairman for the term ending February 2, 2015 upon the relinquishment of the post by
respondent Villar, and Heidi Mendoza was appointed Commissioner for a 7-year term ending
February 2, 2018 to replace San Buenaventura. If Justice Mendoza’s version is adopted, then
situations like the one which obtains in the Commission will definitely be replicated in gross
breach of the Constitution and in clear contravention of the intent of its framers. Presidents in the
future can easily control the Commission depriving it of its independence and impartiality.
To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:
1. The appointment of members of any of the three constitutional commissions, after the
expiration of the uneven terms of office of the first set of commissioners, shall always be
for a fixed term of seven (7) years; an appointment for a lesser period is void and
unconstitutional.
The appointing authority cannot validly shorten the full term of seven (7) years in case of
the expiration of the term as this will result in the distortion of the rotational system
prescribed by the Constitution.
2. Appointments to vacancies resulting from certain causes (death, resignation, disability
or impeachment) shall only be for the unexpired portion of the term of the predecessor,
but such appointments cannot be less than the unexpired portion as this will likewise
disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a
full term of seven years and who served the entire period, are barred from reappointment
to any position in the Commission. Corollarily, the first appointees in the Commission
under the Constitution are also covered by the prohibition against reappointment.
4. A commissioner who resigns after serving in the Commission for less than seven
years is eligible for an appointment to the position of Chairman for the unexpired portion
of the term of the departing chairman. Such appointment is not covered by the ban on
reappointment, provided that the aggregate period of the length of service as
commissioner and the unexpired period of the term of the predecessor will not exceed
seven (7) years and provided further that the vacancy in the position of Chairman
resulted from death, resignation, disability or removal by impeachment. The Court
clarifies that "reappointment" found in Sec. 1(2), Art. IX(D) means a movement to one
and the same office (Commissioner to Commissioner or Chairman to Chairman). On the
other hand, an appointment involving a movement to a different position or office
(Commissioner to Chairman) would constitute a new appointment and, hence, not, in the
strict legal sense, a reappointment barred under the Constitution.
5. Any member of the Commission cannot be appointed or designated in a temporary or
acting capacity.
WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner
Reynaldo A. Villar to the position of Chairman of the Commission on Audit to replace Guillermo
N. Carague, whose term of office as such chairman has expired, is hereby declared
UNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D) of the Constitution.
SO ORDERED.
TRANSFER
G.R. No. 139382 December 6, 2000
THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS, EXECUTIVE SECRETARY
RONALDO B. ZAMORA, and ATTY. CARINA J. DEMAISIP, petitioners,
vs.
ATTY. JOSEFINA G. BACAL, respondent.
DECISION
MENDOZA, J.:
This case involves the appointment and transfer of career executive service officers (CESOs).
More specifically, it concerns the "appointment" of respondent Josefina G. Bacal, who holds the
rank of CESO III, to the position of Chief Public Attorney in the Public Attorney’s Office, which
has a CES Rank Level I, and her subsequent transfer, made without her consent, to the Office of
the Regional Director of the PAO.
In its decision1 rendered on March 25, 1999, the Court of Appeals declared respondent Josefina
G. Bacal entitled to the position of Chief Public Attorney in the Public Attorney’s Office.
Petitioners moved for a reconsideration, but their motion was denied by the appeals court in its
resolution dated July 22, 1999. Hence this petition for review on certiorari. Petitioners contend
that the transfer of respondent to the Office of the Regional Director of the PAO is appropriate
considering her rank as CESO III.
The background of this case is as follows:
Respondent Josefina G. Bacal passed the Career Executive Service Examinations in 1989. On
July 28, 1994, she was conferred CES eligibility and appointed Regional Director of the Public
Attorney’s Office. On January 5, 1995, she was appointed by then President Fidel V. Ramos to
the rank of CESO III. On November 5, 1997, she was designated by the Secretary of Justice as
Acting Chief Public Attorney. On February 5, 1998, her appointment was confirmed by President
Ramos so that, on February 20, 1998, she took her oath and assumed office.
On July 1, 1998, petitioner Carina J. Demaisip was appointed "chief public defender" by
President Joseph Estrada. Apparently because the position was held by respondent, another
appointment paper was issued by the President on July 6, 1998 designating petitioner Demaisip
as "chief public defender (formerly chief public attorney), PUBLIC DEFENDER'S OFFICE,
DEPARTMENT OF JUSTICE vice ATTY. JOSEFINA G. BACAL, effective July 1, 1998."2 On the
other hand, respondent was appointed "Regional Director, Public Defender’s Office" by the
President.
On July 7, 1998, petitioner Demaisip took her oath of office. President Estrada then issued a
memorandum, dated July 10, 1998, to the personnel of the "Public Defender’s Office"
announcing the appointment of petitioner Demaisip as "CHIEF PUBLIC DEFENDER." Petitioner
Secretary of Justice was notified of the appointments of petitioner Demaisip and respondent
Bacal on July 15, 1998.
On July 17, 1998, respondent filed a petition for quo warranto questioning her replacement as
Chief Public Attorney. The petition, which was filed directly with this Court, was dismissed
without prejudice to its refiling in the Court of Appeals. Accordingly, respondent brought her case
in the Court of Appeals which, on March 25, 1999, ruled in her favor, finding her to be lawfully
entitled to the Office of Chief Public Attorney.
Petitioners seek the reversal of the decision of the Court of Appeals on the following grounds ¾
I. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT JOSEFINA G.
BACAL, A CAREER EXECUTIVE SERVICE OFFICER, HAS A VALID AND VESTED
RIGHT TO THE POSITION OF CHIEF PUBLIC ATTORNEY AND, AS SUCH, CANNOT
BE REASSIGNED OR TRANSFERRED TO THE POSITION OF REGIONAL
DIRECTOR, PUBLIC ATTORNEY’S OFFICE, DEPARTMENT OF JUSTICE.
II. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT BACAL, WHO
HOLDS A CES RANK LEVEL III, WAS REASSIGNED OR TRANSFERRED TO A
POSITION WHICH DOES NOT CORRESPOND TO HER PRESENT RANK LEVEL
INASMUCH AS THE POSITION OF BUREAU REGIONAL DIRECTOR CARRIES A CES
RANK LEVEL V ONLY. CONTRARY TO THE CONCLUSIONS OF THE COURT OF
APPEALS, SAID POSITION OF REGIONAL DIRECTOR, PUBLIC ATTORNEY’S
OFFICE, THE POSITION TO WHICH RESPONDENT BACAL WAS REASSIGNED OR
TRANSFERRED, CARRIES A CES RANK LEVEL III WHICH CORRESPONDS TO HER
CES RANK III LEVEL. AS AN OFFICER WITH A RANK III LEVEL, RESPONDENT
BACAL IS NOT THEREFORE ELIGIBLE FOR THE POSITION OF CHIEF PUBLIC
ATTORNEY WHICH CARRIES A CES RANK LEVEL I.
III. UPON HER REASSIGNMENT OR TRANSFER TO THE POSITION OF REGIONAL
DIRECTOR, RESPONDENT BACAL DID NOT LOSE HER CES RANK III AND HER
RIGHT TO RECEIVE THE SALARY CORRES-PONDING TO HER PRESENT RANK.
IV. RESPONDENT BACAL FAILED TO SHOW THAT SHE HAS A CLEAR RIGHT TO
THE POSITION OF CHIEF PUBLIC ATTORNEY.
 V. RESPONDENT BACAL FAILED TO FULLY EXHAUST THE ADMINISTRATIVE
REMEDIES AVAILABLE TO HER BEFORE FILING THE PETITION FOR QUO
WARRANTO WITH THE COURT OF APPEALS.3
I. Exhaustion of Administrative Remedies
We first consider petitioners’ contention that respondent’s quo warranto suit should have been
dismissed for failure of respondent to exhaust administrative remedies by appealing to the Office
of the President.
The contention has no merit. If, as has been held, no appeal need be taken to the Office of the
President from the decision of a department head because the latter is in theory the alter ego of
the former,4 there is greater reason for not requiring prior resort to the Office of the President in
this case since the administrative decision sought to be reviewed is that of the President himself.
Indeed, we have granted review in other cases involving the removal of the Administrator of the
Philippine Overseas Employment Administration5 and the Executive Director of the Land
Transportation Office6 without requiring the petitioners to exhaust administrative remedies
considering that the administrative actions in question were those of the President.
In any event, the doctrine of exhaustion of administrative remedies does not apply when the
question raised is purely legal.7 In this case, the question is whether respondent’s transfer to the
position of Regional Director of the Public Attorney’s Office, which was made without her
consent, amounts to a removal without cause. This brings us to the main issue in this appeal.
II. Merits of the Case
In holding that respondent’s transfer amounted to a removal without cause, the Court of Appeals
said:
. . . Her appointment as Regional Director was in effect a removal in the guise of transfer, to
repeat, without her consent. Having been validly appointed Chief Public Defender by the
President on February 8, 1998, would naturally entitle her to security of tenure since on the basis
of the appointment, she was appointed, not merely assigned, to a particular station. Her
involuntary transfer, through appointment, to that of a mere Regional Director, did not either
conform to the rules on the constitutional protection of security of tenure. Above all, her
supposed appointment as a Regional Director is not only temporary but is on the other hand
permanent wherein she lost her position as Chief Public Attorney, or her connection with the
previous position being severed.
....
In the case of the petitioner, there is certainly a diminution in duties and responsibilities when
she was downgraded through the July 6, 1998 appointment, involuntarily made, from that of
Chief Public Attorney to a mere Regional Director. To repeat, the rank equivalent to a Bureau
Director is Rank III while that of a mere Bureau Regional Director is Rank V. Diminution in duties
and responsibilities, certainly becomes apparent and then in the matter of salary, the basic
salary of a Chief Public Attorney together with all the perks, would amount to P575,199.00. In the
case of a Regional Director, his basic salary together with all the perks, would only amount to
P341,479.96. Admittedly, when a CESO is assigned or made to occupy a position with a lower
salary grade, he shall supposedly continue to be paid his salary that attaches to his CES rank. It
cannot, on the other hand, be denied that the moment a non-CESO is appointed to a CES
position, he shall receive, at the same time, the salary of his CES position. There is merit in the
petitioner’s argument that allowing the Regional Director to receive continuously the salary rate
of Chief Public Attorney in effect would amount to an illegal consequence since the
disbursement of public funds, as budgeted, provides funding for only one Chief Public Attorney.
The dilemma arises when both the petitioner and respondent Demaisip would be claiming the
salary of a Chief Public Attorney. There is no pretension either in the Brief of the public
respondents that there has been a supplemental budget for the petitioner, now downgraded to a
mere Regional Director, to be receiving continuously the salary scale of a Chief Public Attorney.
....
Changing a CESO, Rank III, with a non-CESO eligible nor a CESO defies the recruitment,
selection and appointment process of the Career Executive Service. As a matter of fact, as a rule
(1997 Revised Edition, Handbook, Career Executive Service), the appointment to most positions
in the CES is supposed to be made by the President only from the list of CES eligibles, but
recommended by the CES Board. Admittedly, an incumbent of a CES position may qualify for
appointment to a CES rank, only upon the confirming of a CES Eligibility and compliance with
the other requirements being prescribed by the Board (Ibid. p. 5). Precisely, the CES was
created pursuant to PD No. 1 (adopting the Integrated Reorganizational Plan, dated September
24, 1972), if only to form a continuing pool of well-selected and development-oriented career
administrators who shall provide competent and faithful service (Ibid. p. 2). We cannot see this
from that of the petitioner then being replaced by a non-CESO.8
The appealed decision will not bear analysis.
First. What should be emphasized in this case is that respondent Josefina G. Bacal is a CESO III
and that the position of Regional Director of the PAO, to which she was transferred, corresponds
to her CES Rank Level III and Salary Grade 28. This was her position before her "appointment"
on February 5, 1998 to the position of Chief Public Attorney of the PAO, which requires a CES
Rank Level I for appointment thereto. Respondent Bacal therefore has no ground to complain.
She may have been considered for promotion to Rank I to make her appointment as Chief Public
Attorney permanent. The fact, however, is that this did not materialize as petitioner Carina J.
Demaisip was appointed in her place. If respondent was paid a salary equivalent to Salary
Grade 30 while she was holding that office, it was only because, under the law, if a CESO is
assigned to a position with a higher salary grade than that corresponding to his/her rank, he/she
will be allowed the salary of the CES position.
As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of
tenure in respect of that position. As held in Achacoso v. Macaraig:9
It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a
moment’s notice," conformably to established jurisprudence. . . .
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his eligibility
or lack of it. A person who does not have the requisite qualifications for the position cannot be
appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely
in an acting capacity in the absence of appropriate eligibles. The appointment extended to him
cannot be regarded as permanent even if it may be so designated. . . .
It is contended, however, that respondent is qualified for the position of Chief Public Attorney
because this position has a CES Rank Level III, while that of Regional Director, Public Attorney’s
Office, has a CES Rank Level V. This is not so. The position of Chief Public Attorney has a CES
Rank Level I and a Salary Grade 30, while that of Regional Director of the PAO has a CES Rank
Level III and a Salary Grade 28. This is shown by the following:10
1. Certification, dated April 6, 1999, issued by the Secretary of the Department of Budget
and Management (DBM), which states that "the position of the head of Public Attorney’s
Office (PAO) is classified as Chief Public Attorney at Salary Grade 30" (Annex A of
Annex M, Petition).
2. Certification, dated April 15, 1999, issued by Elmor D. Juridico, then Executive
Director of the CES Board, which states that "the Rank equivalent to the position of Chief
Public Attorney and Regional Public Attorney are CESO Rank I and CESO Rank III
respectively" (Annex B of Annex M, Petition); and
3. Certification, dated July 8, 1998, previously issued to respondent Bacal by then
Executive Director Juridico of the CES Board, stating that the position of Chief Public
Attorney has a CES rank equivalent of Rank I. (vide Annex C of Annex M, Petition). The
certification reads:
This is to certify that Atty. JOSEFINA G. BACAL, Chief Public Attorney, Public Attorney’s Office
was conferred CES Eligibility on July 28, 1994 per Board Resolution No. 94-4620 and was
appointed Career Executive Service Officer (CESO) Rank III by then President Fidel V. Ramos
on January 5, 1995. She is yet to fulfill the requirements for an adjustment of her CES rank (from
CES Rank III to Rank I) to a level equivalent to her present position.
This certification is issued upon the request of Atty. Bacal for whatever purpose it may serve
best.
Second. The Court of Appeals held that respondent Bacal had acquired security of tenure as
Chief Public Attorney by the mere fact of her appointment to that position. This is likewise the
point of the dissent of Justice Gonzaga-Reyes who contends that a CES eligibility is all that a
person needs in order to acquire security of tenure in any position embraced in the Career
Executive service; that a CESO rank is only necessary to differentiate a CESO’s general
managerial duties/responsibilities, personal qualifications, and demonstrated competence; and
that no other CES examination is required for appointment to a higher rank.
Appointments, assignments, reassignments, and transfers in the Career Executive Service are
based on rank. On this point, the Integrated Reorganization Plan cannot be any clearer. It
provides:11
c. Appointment. Appointment to appropriate classes in the Career Executive Service shall be
made by the President from a list of career executive eligibles recommended by the Board. Such
appointments shall be made on the basis of rank; provided that appointments to the higher ranks
which qualify the incumbents to assignments as undersecretary and heads of bureaus and
offices and equivalent positions shall be with the confirmation of the Commission on
Appointments. The President may, however, in exceptional cases, appoint any person who is not
a Career Executive Service eligible; provided that such appointee shall subsequently take the
required Career Executive Service examination and that he shall not be promoted to a higher
class until he qualifies in such examination.
At the initial implementation of this Plan, an incumbent who holds a permanent appointment to a
position embraced in the Career Executive Service shall continue to hold his position, but may
not advance to a higher class of position in the Career Executive Service unless or until he
qualifies for membership in the Career Executive Service.
....
e. Assignments, Reassignments and Transfers. Depending upon their ranks, members of the
Service shall be assigned to occupy positions of Undersecretary, Assistant Secretary, Bureau
Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as may be identified by the Board on
the basis of the members’ functional expertise. . . .
The rules and regulations promulgated by the CES Board12 to implement the Integrated
Reorganization Plan are equally clear in providing that ¾
Career Executive Service Eligibility
Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the
inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the
Board through a formal Board Resolution after an evaluation of the examinee’s performance in
the four stages of the CES eligibility examinations.
....
Appointment to CES Rank
Upon conferment of a CES eligibility and compliance with the other requirements prescribed by
the Board, an incumbent of a CES position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the President upon the recommendation of the
Board. This process completes the official’s membership in the CES and most importantly,
confers on him security of tenure in the CES.
There are six (6) ranks in the CES ranking structure. The highest rank is that of a Career
Executive Service Officer I (CESO I), while the lowest is that of CESO VI.
The appropriate CESO rank to which a CES eligible may be appointed depends on two major
qualification criteria, namely: (1) level of managerial responsibility; and, (2) performance.
Performance is determined by the official’s performance rating obtained in the annual CESPES.
On the other hand, managerial responsibility is based on the level of the general duties and
responsibilities which an eligible is performing, as follows:
Levels of Duties and Rank Equivalent
Responsibilities
if level of managerial responsibilities are comparable to that I confers security of tenure - is what will undermine the Career Executive Service.
of an Undersecretary
if comparable to that of an Assistant Secretary II
if comparable to that of a Bureau Director or a Department III
Regional Director
if comparable to that of an Assistant Bureau Director, IV
Department Assistant Regional Director or Department
Service Chief
if comparable to that of a Bureau Regional Director V
if comparable to that of a Bureau Assistant Regional Director VI
As a general rule, a CES eligible will be recommended for appointment to the rank equivalent of
the level of his managerial responsibility if his performance rating is Satisfactory or higher. If the
performance rating is Outstanding, he will be recommended one rank higher than his level of
managerial responsibility.
Security of tenure in the career executive service is thus acquired with respect to rank and not to
position. The guarantee of security of tenure to members of the CES does not extend to the
particular positions to which they may be appointed ¾ a concept which is applicable only to first
and second-level employees in the civil service ¾ but to the rank to which they are appointed by
the President. Accordingly, respondent did not acquire security of tenure by the mere fact that
she was appointed to the higher position of Chief Public Attorney since she was not
subsequently appointed to the rank of CESO I based on her performance in that position as
required by the rules of the CES Board.
Indeed, to contend, as does the dissent of Justice Gonzaga-Reyes, that a CES eligibility was all
that was required to make her appointment to the position of Chief Public Attorney permanent
would give rise to an anomalous situation. Following such theory, even if respondent is not
appointed CESO I because her performance as Chief Public Attorney does not warrant her
appointment to such higher rank, she cannot be transferred to any other office to which her rank
(CESO III) qualifies her. This theory of the dissent, i.e., that a CES eligibility gives the appointee
security of tenure - not the ruling in this case that it is appointment to the appropriate rank that
Third. Within the Career Executive Service, personnel can be shifted from one office or position
to another without violation of their right to security of tenure because their status and salaries
are based on their ranks and not on their jobs. To understand this, it is necessary to consider the
reason for the creation of the Career Executive Service.
R.A. No. 5435,13 as amended by R.A. Nos. 6076, 6172, and 6175, created a commission charged
with the specific function of reorganizing the government "to promote simplicity, economy, and
efficiency" in its operations. The result was the preparation of the Integrated Reorganization Plan
which was adopted and declared part of the law of the land by P.D. No. 1 on September 24,
1972. A major feature of the Integrated Reorganization Plan was the creation of the Career
Executive Service whose justification was explained by the Commission on Reorganization, thus:
The present Civil Service system is not geared to meet the executive manpower needs of the
government. The filling of higher administrative positions is often based on considerations other
than merit and demonstrated competence. The area of promotion is currently confined to the
person or persons "next-in-rank" in the agency. Moreover, personnel classification and
compensation are uniformly based on concepts and procedures which are suited to positions in
the lower levels but not to managerial posts in the higher levels. To fill this crucial gap, it is
recommended that a Career Executive Service be established. This group of senior
administrators shall be carefully selected on the basis of high qualifications and competence.
Skilled in both techniques and processes of management, these career executives will act as
catalysts for administrative efficiency and as agents of administrative innovation.
The status and salary of the career executives will be based on their rank, and not on the job
that they occupy at any given time . . . . In this sense, the rank status of the Career Executive
Service is similar to that of the commissioned officers in the Armed Forces or members of the
Foreign Service. Unlike these latter organizations, however, entrance to the Career Executive
Service will not be generally at an early age in a relatively junior level but at a senior
management level.
....
The rank classification in the Service will allow for mobility or flexibility of assignments such that
the government could utilize the services or special talents of these career executives wherever
they are most needed or will likely create the greatest impact. This feature is especially relevant
in a developing country which cannot afford to have its scarce executive manpower pegged to
particular positions.
Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies of
public service, is thus the distinguishing feature of the Career Executive Service. To attain this
objective, the Integrated Reorganization Plan provides:14
e. Assignments, Reassignments and Transferees. . . .
Any provision of law to the contrary notwithstanding, members of the Career Executive Service
may be reassigned or transferred from one position to another and from one department, bureau
or office to another; provided that such reassignment or transfer is made in the interest of public
service and involves no reduction in rank or salary; provided, further, that no member shall be
reassigned or transferred oftener than every two years; and provided, furthermore, that if the
officer concerned believes that his reassignment or transfer is not justified, he may appeal his
case to the President.
The implementing rules and regulations of the CES Board provide:
Salary of Career Executive Service Officers. A CESO is compensated according to his CES rank
and not on the basis of the CES position he occupies. However, if a CESO is assigned to a CES
position with a higher salary grade than that of his CES rank, he is allowed to receive the salary
of the CES position.
Should he be assigned or made to occupy a CES position with a lower salary grade, he shall
continue to be paid the salary attached to his CES rank.15
Petitioners are, therefore, right in arguing that respondent, "as a CESO, can be reassigned from
one CES position to another and from one department, bureau or office to another. Further,
respondent, as a CESO, can even be assigned or made to occupy a CES position with a lower
salary grade. In the instant case, respondent, who holds a CES Rank III, was correctly and
properly appointed by the appointing authority to the position of Regional Director, a position
which has a corresponding CES Rank Level III."16
Indeed, even in the other branches of the civil service, the rule is that, unless an employee is
appointed to a particular office or station, he can claim no security of tenure in respect of any
office. This rule has been applied to such appointments as Director III or Director IV or Attorney
IV or V in the Civil Service Commission since the appointments are not to specified offices but to
particular ranks;17 Election Registrars;18 Election Officers, also in the Commission on
Elections;19 and Revenue District Officers in the Bureau of Internal Revenue.20 Reiterating the
principle in Sta. Maria v. Lopez,21 this Court said:
. . . [T]he rule that outlaws unconsented transfers as anathema to security of tenure applies only
to an officer who is appointed - not merely assigned - to a particular station. Such a rule does not
proscribe a transfer carried out under a specific statute that empowers the head of an agency to
periodically reassign the employees and officers in order to improve the service of the agency.
The use of approved techniques or methods in personnel management to harness the abilities of
employees to promote optimum public service cannot be objected to. . . .
For the foregoing reasons, we hold that respondent’s appointment to the position of Chief Public
Attorney was merely temporary and that, consequently, her subsequent transfer to the position
of Regional Director of the same office, which corresponds to her CESO rank, cannot be
considered a demotion, much less a violation of the security of tenure guarantee of the
Constitution.
Fourth. On the other hand, Justice Puno makes much of the fact that petitioner Carina J.
Demaisip is not a CES eligible. Suffice it to say the law allows in exceptional cases the
appointment of non-CES eligibles provided that the appointees subsequently pass the CES
Examinations. Thus Part III, Chap. I, Art. IV, par. 5(c) of the Integrated Reorganization Plan
provides that the President may, in exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee shall subsequently take the required
Career Executive Service examination and that he shall not be promoted to a higher class until
he qualified in such examination.
For the same reason that the temporary appointment of respondent Josefina G. Bacal as Chief
Public Attorney is valid under this provision of the law despite the fact that she does not hold the
rank of CESO I, so is the appointment to the same position of petitioner Carina J. Demaisip. The
question in this case is not the validity of the appointment to such position but whether the
appointee acquires security of tenure even if he does not possess the requisite rank. There is no
claim that petitioner Demaisip has a right to remain in the position of Chief Public Attorney
permanently. 1âw phi 1
On the other hand, as respondent herself does not have the requisite qualification for the
position of Chief Public Attorney, she cannot raise the lack of qualification of petitioner. As held
in Carillo v. Court of Appeals,22 "in a quo warranto proceeding the person suing must show that
he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack
of qualification or eligibility of the supposed usurper is immaterial."23 Indeed, this has been the
"exacting rule"24 since it was first announced, 95 years ago, in Acosta v. Flor.25 As at present
embodied in Rule 66, §5 of the Rules of Civil Procedure, the rule is that "a person claiming to be
entitled to a public office or position usurped or unlawfully held or exercised by another may
bring an action therefor in his own name."
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petition for quo
warranto filed by respondent is DISMISSED.
SO ORDERED.
DETAIL
G.R. No. 178021 January 25, 2012
REPUBLIC OF THE PHILIPPINES, represented by the CIVIL SERVICE
COMMISSION, Petitioner,
vs.
MINERVA M.P. PACHEO, Respondent.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by
petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG),
which assails the February 22, 2007 Decision1 and the May 15, 2007 Resolution2 of the Court of
Appeals (CA) in CA-G.R. SP No. 93781. The CA reversed the November 21, 2005 Resolution of
the Civil Service Commission (CSC) declaring the re-assignment of respondent Minerva M.P.
Pacheos (Pacheo) not valid and ordering her reinstatement to her original station but without
backwages under the principle of "no work, no pay."
The Facts
Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of
Internal Revenue (BIR) in Revenue Region No. 7 (RR7), Quezon City.
On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. 25-
2002,3 ordering the reassignment of Pacheo as Assistant Chief, Legal Division from RR7 in
Quezon City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the revenue
service as basis for the issuance of the said RTAO.
Pacheo questioned the reassignment through her Letter dated May 9, 20024 addressed to Rene
G. Banez, then Commissioner of Internal Revenue (CIR). She complained that the transfer
would mean economic dislocation since she would have to spend ₱ 200.00 on daily travel
expenses or approximately ₱ 4,000.00 a month. It would also mean physical burden on her part
as she would be compelled to wake up early in the morning for her daily travel from Quezon City
to San Fernando, Pampanga, and to return home late at night from San Fernando, Pampanga to
Quezon City. She was of the view that that her reassignment was merely intended to harass and
force her out of the BIR in the guise of exigencies of the revenue service. In sum, she
considered her transfer from Quezon City to Pampanga as amounting to a constructive
dismissal.
Due to the then inaction of the BIR, Pacheo filed a complaint5 dated May 30, 2002, before the
CSC- National Capital Region (CSC-NCR), praying for the nullification of RTAO No. 25-2002. In
its July 22, 2002 Order,6 the CSC-NCR treated Pacheo’s Complaint as an appeal and dismissed
the same, without prejudice, for failure to comply with Sections 73 and 74 of Rule V(b) of the
Uniform Rules on Administrative Cases in the Civil Service.7
In its Letter-reply8 dated September 13, 2002, the BIR, through its Deputy Commissioner for
Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied Pacheo’s protest for lack
of merit. It contended that her reassignment could not be considered constructive dismissal as
she maintained her position as Revenue Attorney IV and was designated as Assistant Chief of
Legal Division. It emphasized that her appointment to the position of Revenue Attorney IV was
without a specific station. Consequently, she could properly be reassigned from one
organizational unit to another within the BIR. Lastly, she could not validly claim a vested right to
any specific station, or a violation of her right to security of tenure.
Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.
On November 21, 2005, the CSC issued Resolution No. 0516979 granting Pacheo’s appeal, the
dispositive portion of which reads:
WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby GRANTED. The Bureau of
Internal Revenue Revenue Travel Assignment Order No. 25-2002 dated May 7, 2002, on the
reassignment of Pacheo to the Legal Division Revenue Region No. 4 San Fernanado,
Pampanga, is hereby declared NOT VALID. ACCORDINGLY, Pacheo should now be recalled to
her original station. This Commission, however rules and so holds that the withholding by the
BIR of Pacheo’s salary for the period she did not report to work is justified.
The CSCRO No. III is directed to monitor the implementation of this Resolution.
In granting Pacheo’s appeal, the CSC explained:
On the second issue, this Commission finds merit in appellant’s contention that her reassignment
in not valid.
Of pertinent application thereto is Rule III, Section 6 of CSC Memorandum Circular No. 40,
series of 1998, dated December 14, 1998, which provides:
Section 6. Other Personnel Movements. The following personnel movements which will not
require issuance of an appointment shall nevertheless require an office order by duly authorized
official.
a. Reassignment – Movement of an employee from one organizational unit to another in the
same department or agency which does not involve reduction in rank, status or salary. If
reassignment is done without consent of the employee being reassigned it shall be allowed for a
maximum period of one year. Reassignment is presumed to be regular and made in the interest
of public service unless proven otherwise or it constitutes constructive dismissal.
No assignment shall be undertaken if done indiscriminately or whimsically because the law is not
intended as a convenient shield for the appointing/ disciplining authority to harass or oppress a
subordinate on the pretext of advancing and promoting public interest.
Reassignment of small salaried employee is not permissible if it causes significant financial
dislocation.’
Although reassignment is a management prerogative, the same must be done in the exigency of
the service without diminution in rank, status and salary on the part of the officer or employee
being temporarily reassigned. Reassignment of ‘small salaried’ employees, however is not
allowed if it will cause significant financial dislocation to the employee reassigned. Otherwise the
Commission will have to intervene.
The primary purpose of emphasizing ‘small salaried employees’ in the foregoing rule is to protect
the ‘rank and file’ employees from possible abuse by the management in the guise of
transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51 O.G. 2452) ruled:
‘ x x x [T]he protection against invalid transfer is especially needed by lower ranking employees.
The Court emphasized this need when it ruled that officials in the unclassified service,
presidential appointees, men in the government set up occupy positions in the higher echelon
should be entitled to security of tenure, unquestionable a lesser sol[ci]itude cannot be meant for
the little men, that great mass of Common underprivileged employees-thousand there are of
them in the lower bracket, who generally are without connections and who pin their hopes of
advancement on the merit system instituted by our civil service law.’
In other words, in order to be embraced in the term ‘small-salaried employees’, the latter must
belong to the ‘rank and file’; and, his/her salary would be significantly reduced by virtue of the
transfer/reassignment. ‘Rank and file’ was categorized as those occupying the position of
Division Chief and below, pursuant to CSC Resolution No. 1, series of 1991, dated January 28,
1991.
The facts established on record show that Pacheo belongs to the rank and file receiving an
average monthly salary of Twenty Thousand Pesos (₱ 20,000.00) under the salary
standardization law and a monthly take home pay of Fourteen Thousand Pesos (₱ 14,000.00).
She has to spend around Four Thousand Pesos (₱ 4,000.00) a month for her transportation
expenses as a consequence of her reassignment, roughly twenty eight percent (28%) of her
monthly take home pay. Clearly, Pacheo’s salary shall be significantly reduced as a result of her
reassignment.
In ANORE, Ma. Theresa F., this Commission ruled:
‘Anore, a lowly salaried employee, was reassigned to an isolated island 15 kilometers away from
her original place of assignment. She has to travel by boat with only one trip a day to report to
her new place of assignment in an office without any facilities, except its bare structure. Worst,
the municipality did not provide her with transportation allowance. She was forced to be
separated from her family, look for a boarding house where she can stay while in the island and
spend for her board and lodging. The circumstances surrounding Anore’s reassignment is
exactly the kind of reassignment that is being frowned upon by law.’
This Commission, however, rules and so holds that the withholding by the BIR of her salaries is
justified as she is not entitled thereto since she is deemed not to have performed any actual
work in the government on the principle of no work no pay.
Accordingly, Pacheo should now be reinstated to her original station without any right to claim
back salary as she did not report to work either at her new place of assignment or at her original
station.10 [Emphases in the original]
Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in not
finding that she was constructively dismissed and, therefore, entitled to back salary.
On March 7, 2006, the CSC issued Resolution No. 06039711 denying Pacheo’s motion for
reconsideration.
Undaunted, Pacheo sought recourse before the CA via a petition for review.
In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in favor of
Pacheo, the fallo of which states:
WHEREFORE, the petition is GRANTED. Resolution nos. 051697 and 060397 dated November
21, 2005 and March 7, 2006, respectively, of the Civil Service Commission are REVERSED and
SET ASIDE. A new judgment is hereby entered finding petitioner to have been constructively
dismissed and ordering her immediate reinstatement with full backwages and benefits.
SO ORDERED.12
In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:
While this Court agrees that petitioner’s reassignment was not valid considering that a diminution
in salary is enough to invalidate such reassignment, We cannot agree that the latter has not
been constructively dismissed as a result thereof.
It is well to remember that constructive dismissal does not always involve forthright dismissal or
diminution in rank, compensation, benefits and privileges. For an act of clear discrimination,
insensibility, or disdain by an employer may become so unbearable on the part of the employee
that it could foreclose any choice by him except to forgo his continued employment.
The management prerogative to transfer personnel must be exercised without grave abuse of
discretion and putting to mind the basic elements of justice and fair play. The employer must be
able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee.
In this case, petitioner’s reassignment will result in the reduction of her salary, not to mention the
physical burden that she would suffer in waking up early in the morning to travel daily from
Quezon City to San Fernando, Pampanga and in coming home late at night.
Clearly, the insensibility of the employer is deducible from the foregoing circumstances and
petitioner may have no other choice but to forego her continued employment.
Moreover, it would be inconsistent to hold that the reassignment was not valid due to the
significant reduction in petitioner’s salary and then rule that there is no constructive dismissal just
because said reduction in salary will not render petitioner penniless if she will report to her new
place of assignment. It must be noted that there is constructive dismissal when the reassignment
of an employee involves a diminution in pay.
Having determined that petitioner has been constructively dismissed as a result of her
reassignment, We shall resolve whether or not she is entitled to backwages.
In denying petitioner’s claim for backwages, the CSC held:
This Commission, however, rules and so holds that the withholding by the BIR of her salaries is
justified as she is not entitled thereto since she is deemed not to have performed any actual
work in the government on the principle of no work no pay.
Accordingly, Pacheo should now be reinstated to her original station without any right to claim
back salary as she did not report for work either at her new place of assignment or at her original
station."
Pacheo, while belonging to the rank-and-file employees, is holding a responsible position as an
Assistant Division Chief, who could not just abandon her duties merely because she protested
her re-assignment and filed an appeal afterwards.
We do not agree.
If there is no work performed by the employee there can be no wage or pay, unless of course the
laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended.
The "No work, no pay" principle contemplates a "no work" situation where the employees
voluntarily absent themselves.
In this case, petitioner was forced to forego her continued employment and did not just abandon
her duties. In fact, she lost no time in protesting her reassignment as a form of constructive
dismissal. It is settled that the filing of a complaint for illegal dismissal is inconsistent with a
charge of abandonment. The filing of the complaint is proof enough of his desire to return to
work, thus negating any suggestion of abandonment.
Neither do we agree with the OSG when it opined that:
No one in the Civil Service should be allowed to decide on whether she is going to accept or not
any work dictated upon by the exigency of the service. One should consider that public office is a
public trust and that the act of respondent CIR enjoys the presumption of regularity. To uphold
the failure of respondent to heed the RTAO would result in chaos. Every employee would put his
or her vested interest or personal opinion over and above the smooth functioning of the
bureaucracy.
Security of tenure is a right of paramount value as recognized and guaranteed under Sec. 3, Art.
XIII of the 1987 Constitution.
The State shall afford full protection to labor, xxx and promote full employment and equality of
employment opportunities for all. It shall guarantee the rights of all workers to xxx security of
tenure xxx
Such constitutional right should not be denied on mere speculation of any similar unclear and
nebulous basis.
In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSG’s opinion that when the
transfer is motivated solely by the interest of the service of such act cannot be considered
violative of the Constitution, thus:
"We do not agree to this view. While temporary transfers or assignments may be made of the
personnel of a bureau or department without first obtaining the consent of the employee
concerned within the scope of Section 79 (D) of the Administrative Code which party provides
that ‘The Department Head also may, from time to time, in the interest of the service, change the
distribution among the several Bureaus and offices of his Department of the employees or
subordinates authorized by law,’ such cannot be undertaken when the transfer of the employee
is with a view to his removal. Such cannot be done without the consent of the employee. And if
the transfer is resorted to as a scheme to lure the employee away from his permanent position,
such attitude is improper as it would in effect result in a circumvention of the prohibition which
safeguards the tenure of office of those who are in the civil service. It is not without reason that
this Court made the following observation:
To permit circumvention of the constitutional prohibition in question by allowing removal from
office without lawful cause, in the form or guise of transfers from one office to another, or from
one province to another, without the consent of the transferee, would blast the hopes of these
young civil service officials and career men and women, destroy their security and tenure of
office and make for a subservient, discontented and inefficient civil service force that sways with
every political wind that blows and plays up to whatever political party is in the saddle. That
would be far from what the framers of our Constitution contemplated and desired. Neither would
that be our concept of a free and efficient Government force, possessed of self-respect and
reasonable ambition."
Clearly, the principle of "no work, no pay" does not apply in this case. As held in Neeland v.
Villanueva, Jr:
"We also cannot deny back salaries and other economic benefits on the ground that respondent
Clerk of Court did not work. For the principle of "no work, no pay" does not apply when the
employee himself was forced out of job. Xxx Indeed, it is not always true that back salaries are
paid only when work is done. Xxx For another, the poor employee could offer no work since he
was forced out of work. Thus, to always require complete exoneration or performance of work
would ultimately leave the dismissal uncompensated no matter how grossly disproportionate the
penalty was. Clearly, it does not serve justice to simply restore the dismissed employee to his
position and deny him his claim for back salaries and other economic benefits on these grounds.
We would otherwise be serving justice in halves."
An illegally dismissed government employee who is later ordered reinstated is entitled to back
wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement.
This is only fair and sensible because an employee who is reinstated after having been illegally
dismissed is considered as not having left his office and should be given a comparable
compensation at the time of his reinstatement.
When a government official or employee in the classified civil service had been illegally
dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered
as not having left his office, so that he is entitled to all the rights and privileges that accrue to him
by virtue of the office that he held.13
The CSC moved for reconsideration but its motion was denied by the CA in its May 15, 2007
Resolution.
Hence, this petition.
THE ISSUES
WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN
DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND
ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENT’S REFUSAL TO
 COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY EXECUTORY
PURSUANT TO SECTION 24 (F) OF P.D. 807.
WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY IN
RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR No. 40,
SERIES OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE ISSUANCE
[OF] BIR RTAO No. 25-2002 ORDERING HER REASSIGNMENT FROM BIR RR No. 7
IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO, PAMPANGA.14
In her Memorandum,15 Pacheo asserts that RTAO No. 25-2002, on the pretense of the exigencies
of the revenue service, was solely meant to harass her and force her to resign. As a result of her
invalid reassignment, she was constructively dismissed and, therefore, entitled to her back
salaries and monetary benefits from the time of her illegal dismissal up to her reinstatement.
In its own Memorandum,16 the CSC, through the OSG, argues that constructive dismissal is not
applicable in this case because it was Pacheo herself who adamantly refused to report for work
either in her original station or new place of assignment in clear violation of Section 24 (f) of
Presidential Decree (PD) No. 807.17 Citing jurisprudence,18 the CSC avers that the RTAO is
immediately executory, unless otherwise ordered by the CSC. Therefore, Pacheo should have
first reported to her new place of assignment and then appealed her case to the CSC if she
indeed believed that there was no justification for her reassignment. Since Pacheo did not report
for work at all, she is not entitled to backwages following the principle of "no work, no pay."
THE COURT’S RULING
The petition fails to persuade.
It appears undisputed that the reassignment of Pacheo was not valid. In its memorandum, the
OSG initially argues for the validity of RTAO No. 25-2002 authorizing Pacheo’s reassignment
from Quezon City to San Fernando, Pampanga. Later, however, it specifically prays for the
reinstatement of CSC Resolution Nos. 051697 and 060397, which categorically declared RTAO
No. 25-2002 as not valid. In seeking such relief, the OSG has effectively accepted the finding of
the CSC, as affirmed by the CA, that Pacheo’s reassignment was indeed invalid. Since the issue
of Pacheo’s reassignment is already settled, the Court finds it futile to pass upon the same at this
point.
The question that remains to be resolved is whether or not Pacheo’s assignment constitutes
constructive dismissal and, thus, entitling her to reinstatement and backwages. Was Pacheo
constructively dismissed by reason of her reassignment?
The Court agrees with the CA on this point.
While a temporary transfer or assignment of personnel is permissible even without the
employee's prior consent, it cannot be done when the transfer is a preliminary step toward his
removal, or a scheme to lure him away from his permanent position, or when it is designed to
indirectly terminate his service, or force his resignation. Such a transfer would in effect
circumvent the provision which safeguards the tenure of office of those who are in the Civil
Service.19
Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of 1998, defines
constructive dismissal as a situation when an employee quits his work because of the agency
head’s unreasonable, humiliating, or demeaning actuations which render continued work
impossible. Hence, the employee is deemed to have been illegally dismissed. This may occur
although there is no diminution or reduction of salary of the employee. It may be a transfer from
one position of dignity to a more servile or menial job.
The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work
either in her original station in Quezon City or her new place of assignment in San Fernando,
Pampanga negates her claim of constructive dismissal in the present case being in violation of
Section 24 (f) of P.D. 807 [now Executive Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5,
Section 26 (6)].20 It further argues that the subject RTAO was immediately executory, unless
otherwise ordered by the CSC. It was, therefore, incumbent on Pacheo to have reported to her
new place of assignment and then appealed her case to the CSC if she indeed believed that
there was no justification for her reassignment.
Anent the first argument of CSC, the Court cannot sustain the proposition. It was legally
impossible for Pacheo to report to her original place of assignment in Quezon City considering
that the subject RTAO No. 25-2002 also reassigned Amado Rey B. Pagarigan (Pagarigan) as
Assistant Chief, Legal Division, from RR4, San Fernando, Pampanga to RR7, Quezon City, the
very same position Pacheo formerly held. The reassignment of Pagarigan to the same position
palpably created an impediment to Pacheo’s return to her original station.
The Court finds Itself unable to agree to CSC’s argument that the subject RTAO was
immediately executory. The Court deems it necessary to distinguish between a detail and
reassignment, as they are governed by different rules.
A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A, Chapter 5,
Section 26 (6), thus:
(6) Detail. A detail is the movement of an employee from one agency to another without the
issuance of an appointment and shall be allowed, only for a limited period in the case of
employees occupying professional, technical and scientific positions. If the employee believes
that there is no justification for the detail, he may appeal his case to the Commission. Pending
appeal, the decision to detail the employee shall be executory unless otherwise ordered by the
Commission. [Underscoring supplied]
On the other hand, a reassignment is defined and governed by E.O. 292, Book V, Title 1,
Subtitle A, Chapter 5, Section 26 (7), thus:
(7) Reassignment.—An employee may be reassigned from one organizational unit to another in
the same agency; Provided, That such reassignment shall not involve a reduction in rank, status
or salaries. [Underscoring supplied]
The principal distinctions between a detail and reassignment lie in the place where the employee
is to be moved and in its effectivity pending appeal with the CSC. Based on the definition, a
detail requires a movement from one agency to another while a reassignment requires a
movement within the same agency. Moreover, pending appeal with the CSC, an order to detail is
immediately executory, whereas a reassignment order does not become immediately effective.
In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division from
Quezon City to San Fernando, Pampanga within the same agency is undeniably a
reassignment. The OSG posits that she should have first reported to her new place of
assignment and then subsequently question her reassignment. It is clear, however, from E.O.
292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first report
to the new place of assignment prior to questioning an alleged invalid reassignment imposed
upon an employee. Pacheo was well within her right not to report immediately to RR4, San
Fernando, Pampanga, and to question her reassignment.
Reassignments involving a reduction in rank, status or salary violate an employee’s security of
tenure, which is assured by the Constitution, the Administrative Code of 1987, and the Omnibus
Civil Service Rules and Regulations. Security of tenure covers not only employees removed
without cause, but also cases of unconsented transfers and reassignments, which are
tantamount to illegal/constructive removal.21
The Court is not unaware that the BIR is authorized to assign or reassign internal revenue
officers and employees as the exigencies of service may require. This authority of the BIR,
however, should be prudently exercised in accordance with existing civil service rules.
Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement and back
wages? The Court agrees with the CA that she is entitled to reinstatement, but finds Itself unable
to sustain the ruling that she is entitled to full back wages and benefits. It is a settled
jurisprudence22 that an illegally dismissed civil service employee is entitled to back salaries but
limited only to a maximum period of five (5) years, and not full back salaries from his illegal
dismissal up to his reinstatement.
WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and May 15,
2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are
hereby AFFIRMED with MODIFICATION that respondent Minerva M.P. Pacheo is hereby
ordered reinstated without loss of seniority rights but is only entitled to the payment of back
salaries corresponding to five (5) years from the date of her invalid reassignment on May 7,
2002.
SO ORDERED.
REASSIGNMENT
1âw phi1
G.R. No. 146873 May 9, 2002
REMEDIOS PASTOR, petitioner,
vs.
CITY OF PASIG, MAYOR VICENTE EUSEBIO, THE COURT OF APPEALS (15th Division),
and the CIVIL SERVICE COMMISSION, respondents.
MENDOZA, J.:
Petitioner Remedios Pastor is Budget Officer of the Municipality (now City) of Pasig. In 1992, she
was reassigned to the Office of the Municipal Administrator pending investigation of reports
against her concerning the issuance of Advice of Allotments by her. In 1995, after three years
with no case filed against her, she asked for reinstatement to her former position. But she was
instead reassigned to another unit of the now city government. Upon her complaint, the Civil
Service Commission ordered her reinstatement as Budget Officer of the City of Pasig. However,
on appeal of the city government, the Court of Appeals set aside the decision of the Civil Service
Commission (CSC). Hence this petition for certiorari.
The question is whether the decision of the Court of Appeals should be set aside and that of the
CSC reinstated. We answer the question in the affirmative. 1âw phi1.nêt
The facts are as follows:
Petitioner Remedios Pastor was appointed Budget Officer of the then Municipality (now City) of
Pasig on May 1, 1986. Her appointment was confirmed by the Department of Budget and
Management on July 17, 1987.
On July 6, 1992, the newly-elected Mayor of Pasig, Vicente P. Eusebio, issued a memorandum
relieving petitioner from her position as Municipal Budget Officer and reassigning her to the
Office of the Municipal Administrator of Pasig. The Mayor's order stated:
In view of the adverse report of the Committee on Budget that you issued Advice of
Allotments without sufficient cash collections and pending thorough investigation
there[on], you are hereby relieved of your position as Municipal Budget Officer and
temporarily detailed [sic]1 with the Office of the Municipal Administrator.
Upon receipt hereof, you are hereby directed to turn over all records, properties, and
responsibilities to MR. EDENISON FAINSAN who is hereby designated as Officer-In-
Charge, Municipal Budget Officer.
In this connection, you are hereby ordered to report to the Office of the Municipal
Administrator for temporary assignment.
This order is issued in the interest of public service and shall take effect immediately.2
On March 6, 1995, Mayor Eusebio issued another memorandum (Memorandum Order No. 06-
95) directing petitioner to conduct an in-depth evaluation/study of the operations of the Pasig
City Hall Annex.3
Alleging that since her relief as Budget Officer, no investigation had been conducted regarding
the charge that she had issued Advice of Allotments without sufficient cash collections, petitioner
filed on October 20, 1995 a complaint with the CSC.4 She contended that her "protracted detail"
to the Office of the City Administrator and the deletion of her name from the payroll for the City
Budget Office for the period October 1-15, 1995 were in violation of Civil Service laws, rules, and
regulations and that they constituted oppression and abuse of authority on the part of Mayor
Eusebio. Petitioner prayed for her reinstatement as City Budget Officer of Pasig and for an order
enjoining Mayor Eusebio from designating another person to that petition.
On December 6, 1995, Pasig City Administrator Atty. Reynaldo P. Dionisio issued a
memorandum directing petitioner "in the exigency of the service, in addition to your present
duties, to [conduct a] study on how to improve budgeting and disbursement procedures of city
funds, as well as [a] study on how to enhance the revenue of the city in preparation [for] the
adverse effects of the Supreme Court Ruling on Realty Tax against the City of Pasig."5
In his comment6 on petitioner's complaint before the CSC, respondent City Mayor alleged,
among other things, that petitioner had been reassigned to the Office of the Municipal (now City)
Administrator in view of "her long years of experience in finance and [that she had been] tasked
to conduct studies best suited to her qualifications"; that instead of being suspended for issuing
Advice of Allotments without sufficient cash collections, she was reassigned "for her professional
productive growth [and for the benefit] of the city"; that her reassignment was in the best interest
of the service and did not involve any diminution of salary or rank as a department head; and
that the deletion of petitioner's name from the payroll for October 15, 1995 was due to a
management directive that "every personnel should be in the payroll of actual office assignment"
and that in fact petitioner received her salary for that period and continued to receive the salary
and benefits attached to her position.
In its Resolution No. 96-1190, dated February 5, 1996, the CSC ordered:
WHEREFORE, the appeal of Remedios Pastor is hereby found meritorious. She should
already be returned to her former position or assigned to an office where she can
perform as head of a department.7
The CSC held that, while petitioner's reassignment was originally made in the exigency of the
service without reduction in her rank, status, or salary, respondent City Mayor failed to advance
"sufficient reason" to warrant petitioner's continuous reassignment for more than three years
which "appears too long for one to conduct the study assigned to her."
Respondent City of Pasig did not ask for reconsideration of Resolution No. 96-1190. Instead,
apparently in compliance with the same, it designated petitioner head of the Pasig City Hall
Annex, Karangalan, Pasig City. But petitioner was not satisfied. She asked the CSC for a
clarification of its Resolution. She alleged that there was no position of "Head of Pasig City Hall
Annex" in the plantilla of the city government nor an ordinance creating the Office of Pasig City
Hall Annex which, she claimed, was in fact "just a small bungalow-type building located at
Karangalan Village, Barangay Manggahan, Pasig City, manned by one (1) representative each
from about five (5) departments who report directly to their respective Department Heads at the
Pasig City Hall. Hence, there was really nothing for her to oversee."
In its Resolution No. 97-2845,8 dated May 20, 1997, the CSC found petitioner's reassignment to
the Pasig City Hall Annex to be not in compliance with its decision. It held that the so-called
Pasig City Hall Annex was not a department of the City Government of Pasay but a mere
extension of the City Hall. The CSC also cited the fact that under Municipal Ordinance No. 01-92
of the City, it was the Vice-Mayor who was Officer-in-Charge of the extension office. The CSC
ordered further reassignments of petitioner to other offices be stopped "since [she] has been out
of her official station as Budget Officer for such a long time."
Respondent Mayor Eusebio moved for a reconsideration, arguing that (1) the Pasig City Hall
Annex was, for all intents and purposes, a department of the Pasig local government and (2)
Municipal Ordinance No. 01-92 had been amended and now provides that the officer-in-charge
of the Pasig City Hall Annex shall be either the Vice-Mayor or a department head or official of
equivalent rank.9 His motion was denied, however, by the CSC in its Resolution No. 99-
0200.10 The CSC held that the position of Head of the Pasig City Hall Annex was not equivalent
to the position of City Budget Officer because the Annex was not a line department.
Petitioner then wrote Mayor Eusebio informing him of her intention to resume her duties as City
Budget Officer.10 She was advised, however, to wait because the city government intended to
appeal the decision of the CSC.12
Respondent City of Pasig then filed with the Court of Appeals a petition, denominated for "writ of
certiorari," under Rule 43 of the 1997 Rules of Civil Procedure, impleading only the Civil Service
Commission as respondent. On January 15, 1999, the appeals court rendered a decision,13 the
dispositive portion of which reads:
WHEREFORE, the assailed Resolution (No. 99-0200) of the Civil Service Commission
dated January 15, 1999 is SET ASIDE and RECALLED.
The appeals court held that petitioner's reassignment, first to the Office of the Municipal (now
City) Administrator and later as head of the Pasig City Hall Annex, was a valid exercise of the
"extraordinary powers of the respondent City Government." It pointed out that the reassignment
to the Office of the Municipal Administrator was only "temporary in nature" and that, in
designating petitioner as head of the City Hall Annex, the city government had substantially
complied with Resolution No. 96-1190 of the CSC:
The City Hall Annex was a creation of Municipal Ordinance (No. 01-92) dated January
22, 1992 to bring the services of the government expeditiously and efficiently to the
residents of Manggahan, Dela Paz, and Santolan, Pasig City. There was no reduction of
[petitioner's] rank, status, or salary. The officer-in-charge shall either be the Vice-Mayor
[or] a department head or official of equivalent rank (Ordinance No. 22, Series of 1997.
See: Annex "D") It is, according to [respondents], a small version of the Pasig City Hall.
[Petitioner's] power was that of a department head exercising general supervision,
direction, and control over the operations of the postal services, library, Office of the Civil
Registry, Police Headquarters, Offices of the Treasurer and Assessor, Engineering and
Building Office [and the] Community Relation and Information Office. She was to oversee
the payment of fees/revenues and communication facilities, and provided with sufficient
funds for its operation and maintenance. (Municipal Ordinance No. 01-92, Annex "E,"
Petition) [Respondents] therefore had advanced sufficient reasons to warrant
[petitioner's] assignment as head of the Pasig City Hall Annex in Manggahan, Pasig City
pursuant to resolution No. 96-1190.14
On January 29, 2001, the Court of Appeals denied the CSC's motion for extension of time to file
a motion for reconsideration on the ground that the same is not allowed under its internal rules.15
Petitioner filed this petition alleging that -
I. THE RESPONDENT APPELLATE COURT HAS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT
HAD TAKEN COGNIZANCE AND PASSED JUDGMENT ON THE CIVIL SERVICE
COMMISSION'S ORDER PARTICULARLY CSC RES. NO. 990200, WHICH WAS A
MERE CLARIFICATORY ORDER OF CSC RESOLUTION NO. 961190 WHICH HAD
LONG ATTAINED FINALITY AND EXECUTORY CHARACTER AFTER THE LAPSE OF
THE 15-DAY REGLEMENTARY PERIOD AND NO [MOTION FOR]
RECONSIDERATION WAS EVER FILED BY THE RESPONDENT CITY OF PASIG -
AND THUS FAILED TO CONSIDER THE LATTER'S OBLIGATION (COMPELLABLE BY
MANDAMUS) TO COMPLY WITH THE SUBJECT CSC RESOLUTIONS.
II. THE RESPONDENT APPELLATE COURT HAS COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT FAILED TO CONSIDER THAT THE RESPONDENT CITY OF
PASIG NOT BEING THE PERSON ADVERSELY AFFECTED [BY] THE CSC
RESOLUTION NO. 961190 AND OTHER CLARIFICATORY RESOLUTIONS HAS NO
RIGHT NOR PERSONALITY TO APPEAL AND/OR ASSAIL VIA CERTIORARI IN SAID
CA-G.R. S.P. NO. 51098 ASSAILING THE CSC RESOLUTIONS/ORDER FOR THE
REINSTATEMENT OF THE HEREIN PETITIONER TO HER PREVIOUS POSITION AS
CITY BUDGET OFFICER.
III. WITHOUT PREJUDICE TO GROUND NO. 2, ABOVE STATED, THE RESPONDENT
COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT DID NOT
DISMISS RESPONDENT CITY OF PASIG'S PETITION IN C.A. G.R. S.P. NO. 51098
FOR FAILURE TO IMPLEAD AND/OR EVEN JUST FURNISH A COPY TO THE
HEREIN PETITION OF THEIR SAID PETITION DESPITE THE FACT THAT
PETITIONER IS A NECESSARY AND INDISPENSABLE PARTY [WHICH
CONSTITUTES] A GROSS VIOLATION OF DUE PROCESS.16
Petitioner prays that the decision of the Court of Appeals be set aside and that a writ of
mandamus be issued for the enforcement of CSC Resolution Nos. 96-1190, 97-2845, and 99-
0200.
The Court finds for petitioner Remedios Pastor.
Appeals from the decisions or final orders of the Civil Service Commission to the Court of
Appeals should be by a petition for review pursuant to Rule 43 of the 1997 Rules of Civil
Procedure. As provided by §5 thereof, a copy of the petition should be served on the adverse
party and on the Civil Service Commission. Section 6(a) provides that the petition should state
the full names of the parties to the case without impleading the Civil Service Commission either
as petitioner or respondent. Section 7 provides that the failure of the petitioner to comply with
any of the foregoing requirements regarding proof of service and the contents of the petition is a
sufficient ground for the dismissal of the same. The petition for "writ of certiorari" filed by
respondent city government should therefore have been dismissed for its failure to implead
petitioner as the adverse party and to serve a copy of the petition on her.
We do not agree with petitioner's contention, however, that respondent City of Pasig did not
have the requisite personality to file the petition in the Court of Appeals. Petitioner cites our
ruling in University of the Philippines v. Civil Service Commission17 in support of her counterclaim
that the phrase "party adversely affected" in P.D. No. 807, §3918 refers only to the person or the
respondent employee against whom the administrative disciplinary case is filed.
Petitioner's contention is without merit. The ruling cited, first made in Paredes v. Civil Service
Commission,19 does not apply since it refers to administrative disciplinary cases, which this case
is not. Moreover, said ruling has already been modified in Civil Service Commission v.
Dacoycoy,20 so that appeal now lies from a decision exonerating a civil service employee of
administrative charges.
1. Oversee the operation of all units in the City Hall Annex and submit weekly
accomplishment reports to the City Mayor;
2. Institute measures to improve collections of all income-generating units and submit
periodic progress reports with specific recommendations to the City Mayor through the
City Administrator;
3. Prepare and submit the annual budget of City Hall Annex for inclusion in the regular
city budget;
4. Prepare a sound personnel program to promote careerism and staff development; and

We turn now to the merits of the case. Book V, Title I, Subtitle A, §26(7) of Executive Order No. 5. Perform other duties that may be assigned by the City Mayor or Ordinance24-
292, otherwise known as the Administrative Code of 1987, provides:
show the "more than temporary" nature of her reassignment.
Reassignment. - An employee may be reassigned from one organizational unit to
another in the same agency: Provided, That such reassignment shall not involve a
That she has suffered a diminution in her rank is also evident. Under §30 of the Charter of the
reduction in rank, status, or salary.
City of Pasig,25 her duties and functions as City Budget Officer are to:
It has been held that a reassignment that is indefinite and results in a reduction in rank, status,
(c) . . . take charge of the City Budget Office, and . . .
and salary is in effect a constructive removal from the service.21 In this case, contrary to the
ruling of the Court of Appeals, petitioner's reassignment to different offices in the local
government of Pasig City is indefinite. Petitioner has been on virtual floating assignments which (1) Prepare forms, orders, and circulars embodying instructions on budgetary and
cannot but amount to a diminution of her rank, hence impermissible under the law.22 As already appropriation matters for the signature of the city mayor;
noted, her reassignment began in 1992 with her detail to the Office of the (now) City
Administrator pending investigation of reports that she had issued Advice of Allotments without (2) Review and consolidate the budget proposals of different departments and offices of
sufficient cash collections. However, no investigation appears to have ever been conducted on the City;
the said charge. To justify her continuing reassignment, respondent City Mayor claimed that the
same was "due to petitioner's long years of experience in finance" which especially fitted her for (3) Assist the city mayor in the preparation of the budget and during budget hearings;
studies regarding the city's revenues.1âwphi1.nêt

A similar justification was invoked in Gloria v. Court of Appeals23 for the reassignment of Dr.
Bienvenido Icasiano, Superintendent of the Division of City Schools of Quezon City as
Vocational School Superintendent of the Marikina Institute of Science and Technology. It was
contended that the reassignment would "best fit his qualification and experience" as "an expert in
vocational and technical education." Considering the reason given for the reassignment, it was
held that the same was "more than [merely] temporary" and hence violative of Dr. Icasiano's
security of tenure.
For the same reason, petitioner's reassignment to various offices should be considered more
than merely a temporary one. For all intents and purposes, her reassignment, lasting nearly ten
years now, is a removal without cause as Budget Officer of the City of Pasig. Indeed, her duties
in her new assignment as head of the Pasig City Hall Annex -
(4) Study and evaluate budgetary implications of proposed legislation and submit
comments and recommendations thereon;
(5) Submit periodic budgetary reports to the Department of Budget and Management;
(6) Coordinate with the city treasurer, the city accountant, and the city planning and
development coordinator for the purpose of budgeting;
(7) Assist the sangguniang panlungsod in reviewing the approved budgets of component
barangays of the City;
(8) Coordinate with the city planning and development coordinator in the formulation of
the development plan of the City; and
 (9) Perform such other duties and functions and exercise such other powers as provided
for under Republic Act No. 7160, otherwise known as the Local Government Code of
1991, and those that are prescribed by law or ordinance.
In contrast, as head of the Pasig City Hall Annex, petitioner's budget proposals for the same will
be subject to review by the City Budget Officer. Moreover, the position of City Budget Officer is
created by statute, while that of the head of the Pasig City Hall Annex is created by mere
ordinance.
We agree with the CSC that petitioner should now be returned to her original position for her
indefinite detail to other positions would amount to her removal without cause from the position
to which she has been permanently appointed. As we said in Cruz v. Navarro:26
There is no question that we recognize the validity and indispensable necessity of the
well established rule that for the good of public service and whenever public interest
demands, [a] public official may be temporarily assigned or detailed to other duties even
over his objection without necessarily violating his fundamental and legal rights to
security of tenure in the civil service. But as we have already stated, "such cannot be
undertaken when the transfer of the employee is with a view to his removal" and "if the
transfer is resorted to as a scheme to lure the employee away from his permanent
position" because "such attitude is improper as it would in effect result in a circumvention
of the prohibition which safeguards the tenure of office of those who are in the civil
service."
WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is
SET ASIDE. Respondent City of Pasig is ordered to forthwith REINSTATE petitioner Remedios
Pastor to her original position as Budget Officer of the City of Pasig.
1âwphi 1.nêt
SO ORDERED.
REINSTATEMENT
G.R. No. 196564, August 07, 2017
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), Petitioner, v. ALBERT M.
VELASCO, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
A government employer must exercise its management prerogatives and its authority to
discipline employees in good faith and in accordance with the principles of fair play as expected
of all employers.
Shortly after having been perpetually restrained by the Court of Appeals1 from hearing and
investigating the pending administrative cases against union president Albert M. Velasco
(Velasco) and his colleague Mario I. Molina (Molina), then Government Service Insurance
System (GSIS) President and General Manager Winston F. Garcia (PGM Garcia) dropped
respondent Velasco from the roll of employees anyway following a new set of formal charges:
the first charging him for Gross Discourtesy for doing his duty as president of the employee's
union of asserting a contractual right under the Collective Negotiation Agreement (CNA), and
second for Insubordination for seeking clarification with regard to two conflicting memoranda:
one declaring him ineligible to remain as GSIS Attorney during his term as union president and
another reassigning him as GSIS Attorney to the GSIS Zamboanga, Iligan and Cotabato field
offices (where he clearly cannot perform his duties as union president). Velasco was dropped
from the roll of employees neither for the charge of Gross Discourtesy nor the charge of
Insubordination but for a different basis altogether, i.e., being supposedly absent without
approved leave for more than thirty (30) days despite his reporting for work in the Head
Office instead of the Zamboanga, Iligan and Cotabato field offices.
In this Petition for Review on Certiorari, petitioner GSIS assails the Court of Appeals Decision2 in
CA-G.R. SP No. 86365 dated November 30, 2010. The Court of Appeals, acting on a Petition
for Certiorari and Prohibition (with Prayer for Temporary Restraining Order and Writ of
Preliminary Injunction) filed by herein respondent Velasco against the officers of petitioner GSIS,
declared the following void:
1) GSIS OSVP Office Order No. 04-04 dated July 1, 2004 reassigning Velasco from the head
office of the GSIS in Pasay City to its field offices in Zamboanga, Iligan and Cotabato;
2) The Formal Charge docketed as Adm. Case No. 04-010 against Velasco for Insubordination;
3) The Formal Charge docketed as Adm. Case No. 04-009 against Velasco for Gross
Discourtesy in the Course of Official Duty; and
4) The dropping of Velasco from the GSIS roll of employees.
The Court of Appeals also directed the GSIS to effect the reinstatement of Velasco to his former
position or, if it is no longer feasible, to another position of equivalent rank and compensation.
The GSIS was likewise ordered to pay Velasco his back salaries pertaining to the period during
which he was unlawfully dropped from the roll of employees.
 FACTUAL AND PROCEDURAL ANTECEDENTS
(1) Our Ruling in G.R. Nos. 157383 and
174137 mentioned by the Court of Appeals
in its Decision
PGM Garcia filed administrative charges against Velasco and Molina, who both held the position
of Attorney V in the GSIS. Velasco and Molina allegedly committed grave misconduct for helping
disgruntled employees to conduct concerted protest actions against PGM Garcia and the GSIS
management. PGM Garcia ordered the immediate preventive suspension of Velasco and Molina
for a period of ninety (90) days without pay. A committee was constituted to investigate the
charges against Velasco and Molina.
Velasco and Molina filed with the Civil Service Commission (CSC) a "Petition to Transfer
Investigation to [the] Commission, with an Urgent Motion to Lift Preventive Suspension Order."
The CSC failed to resolve Velasco and Molina's Urgent Motion, leading them to file with the
Court of Appeals on October 10, 2002 a Petition for Certiorari and Prohibition with prayer for a
Temporary Restraining Order (TRO). The Petition, docketed as CA-G.R. SP No. 73170, sought
to set aside the order of PGM Garcia directing them to submit to the jurisdiction of the committee
created to investigate the administrative cases filed against them.
On January 2, 2003, the Court of Appeals rendered its Decision granting Velasco and Molina's
petition. The dispositive portion of the Decision 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 x x x by law.3
PGM Garcia filed with this Court a Petition for Review on Certiorari assailing the Decision of the
Court of Appeals. The Petition was docketed as G.R. No. 157383.
Finally, acting on Velasco and Molina's Petition to Transfer Investigation to the Commission, the
CSC issued its Resolution No. 03-0278 on February 27, 2003, the dispositive portion of which
states:
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.4
The CSC ruled that since the period of the preventive suspension has lapsed, the issue has
become moot. The Petition to Transfer Investigation to the Commission was denied on the
ground that the fact that the GSIS acted as complainant, prosecutor, and judge in the
administrative cases does not necessarily mean that it will not be impartial.
Velasco and Molina assailed the CSC Resolution in a Petition for Review with the Court of
Appeals, which was docketed as CA-G.R. SP No. 75973. On December 7, 2005, the Court of
Appeals rendered its Decision reversing the CSC Resolution, and holding that the lack of the
requisite preliminary investigation rendered the formal charges against Velasco and Molina void.
The Court of Appeals likewise ruled that the propriety of the preventive suspension
has not become moot. Since the preventive suspension emanated from void formal charges,
Velasco and Molina are entitled to back salaries. The dispositive portion of the Decision 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. x x x.5
PGM Garcia filed a Petition for Certiorari with this Court assailing the Decision of the Court of
Appeals in CA-G.R. SP No. 75973. The petition was docketed as G.R. No. 174137, which was
consolidated with G.R. No. 157383.
This Court rendered its Decision on the consolidated petitions on August 10, 2010. The
dispositive portion of this Court's Decision reads:
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.6
This Court held that although the President and General Manager of the GSIS is vested with
authority and responsibility to remove, suspend or otherwise discipline GSIS personnel for
cause, such power is not without limitations and must be exercised in accordance with Civil
Service Rules, which PGM Garcia neglected to do. This Court explained:
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
flagrante 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. 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.7 (Emphasis supplied; citations
omitted.)
On PGM Garcia's argument that Velasco and Molina waived their right to a preliminary
investigation for failure to raise the matter before the GSIS, this Court ruled that a decision held
without due process is void ab initio and may be attacked anytime directly or collaterally by
means of a separate action, or by resisting such decision in any action or proceeding where it is
invoked. Moreover, Velasco and Molina questioned the validity of their preventive suspension in
the CSC on the ground of lack of preliminary investigation.
This Court concluded that since Velasco and Molina were preventively suspended in the same
formal charges that were declared void, their preventive suspension is likewise invalid.
(2) Two Conflicting Memoranda
In the meantime, after the January 2, 2003 Decision of the Court of Appeals in CA-G.R. SP
No. 73170 perpetually restraining PGM Garcia and the GSIS from hearing and investigating the
administrative cases against Velasco and Molina, but before said restraining order was
affirmed by this Court on August 10, 2010, the GSIS issued two conflicting Memoranda to
Velasco:
(a) On June 29, 2004, GSIS Senior Vice-President-Administration Group Concepcion L.
Madarang issued a Memorandum informing Velasco (who was elected President of the
Kapisanan ng mga Manggagawa sa GSIS or KMG in May 2004) that he could no longer hold
the position of GSIS Attorney because of conflict of interest and he should either seek a
transfer to another position or go on extended leave of absence for the duration of his
term as union president; and
(b) A mere two days later or on July 1, 2004, the GSIS Chief Legal Counsel issued OSVP Office
Order No. 04-04, which provided:
Upon request by the SVP, FOG, as required by the exigencies of the service, and in view of the
technical supervision and control of the Chief Legal Counsel over Field Operations Attorneys
and Lawyers of the System, ATTY. ALBERT M. VELASCO, considering his legal expertise on
the System's operations, is temporarily assigned for a period of ninety (90) days to the
Zamboanga, Iligan and Cotabato FODs to augment the legal officers in the said FODs due
to the surmounting number of legal cases therein and shall conduct legal due diligence of cases
pertaining to the System's operating concerns specifically involving housing loan defaults,
collection of arrearages, foreclosure proceedings, and other matters requiring legal attention.
He shall submit written reports, with proper recommendation/s, if needed, to the Field Office
Manager concerned to whom he shall report directly and who shall sign his Daily Attendance
Record (DAR).
Atty. Velasco is allowed cash advances, as needed, subject to reimbursement in accordance
with existing auditing and office rules and regulations.
This Order shall take effect immediately and shall remain effective until further
notice.8 (Emphases supplied.)
This second Memorandum did not state that the transfer was because of conflict of interest. On
the contrary, it specified Velasco's legal expertise as the reason for the transfer. The
Memorandum likewise stated that "(t)his Order shall take effect immediately and shall remain
effective until further notice" which contradicts the statement in the very same memorandum that
the reassignment is for a fixed period of ninety (90) days.9 In other words, the duration of the
reassignment cannot be said to be definite.
Velasco wrote the GSIS informing the latter of the unmistakable conflict between the two
memoranda he received: unless the Memorandum disqualifying him as GSIS Legal Counsel is
withdrawn, he cannot assume the Mindanao posting as GSIS Legal Counsel.
In response to Velasco's request for clarification, Lutgardo B. Barbo10 issued a
Memorandum11 to him on July 9, 2004 stating that "Your reply appears to stonewall or
countermand [OSVP Office Order No. 04-04]. It may also show in no uncertain terms your
defiance, refusal and deliberate failure to comply with an otherwise lawful order." The
Memorandum required Velasco to explain why he should not be administratively dealt with for
Insubordination, Misconduct, Conduct Prejudicial to the Best Interest of the Service and/or
Refusal to Perform Official Duty. Without clarifying the commencement and the term of Velasco's
reassignment other than the vague statement in the July 1, 2004 Order that it "shall take effect
immediately and shall remain effective until further notice," the GSIS immediately treated the
letter as a defiance warranting an administrative charge.
Notably, the reassignment order was issued despite the fact that the GSIS chief legal counsel
had earlier issued a Memorandum12 dated June 7, 2004 urgently requesting PGM Garcia for the
appointment of litigation lawyers in the Legal Services Group (LSG) since three lawyers at the
Head Office had either resigned or were promoted. To quote from said Memorandum which was
issued less than a month prior to Velasco's reassignment:
We respectfully refer to your kind attention the above-captioned request for the appointment of
litigation lawyers for the Legal Services Group (LSG). As you are of course aware, the Litigation
Department of the LSG had been operating shorthanded since the resignation of two (2)
lawyers handling a substantial amount of litigation work. These are Attys. Michael Miranda, of
the Litigation Department, and Gabriel Silvera, of the Corporate Business Department, who
resigned at different times last year.
Since the resignation of the said lawyers, the remaining lawyers of [the] Litigation
Department have had to bear all the work of these resigned lawyers on top of their already
overburdened workload. Please allow me to say sir that the remaining litigation lawyers
superbly performed their work, despite their being overworked, without rancor or reproach.
However, with the impending transfer of one of the lawyers of the Litigation Department, Atty.
Douglas Marigomen, to the Tagbilaran Branch where he has been appointed as Branch
Manager, the Litigation Department will be unable to function to the point of being crippled.
The remaining litigation lawyers will, to be sure, be unable to cope with the workload of
Atty. Marigomen, which will be apportioned among them. Moreover, there has been an influx
of new cases filed against GSIS which require immediate and urgent attention.
In view of the foregoing, we respectfully entreat you to accede to our request for the
immediate appointment of two (2) lawyers for the Litigation Department to fill up the slot or
item of Atty. Miranda and that to be vacated by Atty. Marigomen. We sincerely hope for your kind
attention on this matter. (Emphases supplied.)
Even further highlighting the fact that Velasco's July 1, 2004 reassignment to the Mindanao field
offices was effected despite a continued shortage of lawyers in the GSIS main office is OSVP
Order No. 05-0413 issued on July 5, 2004 by the chief legal counsel detailing one of the field
lawyers to the main office. The pertinent portion of said Order reads:
In the exigency of the service arising from the extreme lack of manpower in the LSG due to the
resignation of Attys. Michael Miranda and Gabriel Silvera, as well as the promotion of Attys.
Douglas Marigomen and Lourdes Dorado as Branch Managers of the Tagbilaran and Batangas
Branches, respectively, and the impending retirement of Atty. Julita Aningat, ATTY. PEACHY
ANNE V. TIONGSON-DUMLAO, is hereby temporarily detailed at the Litigation Department in
order to perform the duties and responsibilities appurtenant to the position of the
abovementioned lawyers.
The Order shall take effect immediately and shall remain effective until the permanent litigation
lawyers are duly appointed by the President and General Manager. (Underscoring supplied.)
(3) Velasco's allegedly Grossly Discourteous Memorandum
Velasco, acting as president of the KMG, issued a memorandum dated June 28, 2004 to GSIS
SVP Leticia P. Sagcal with reference to her memorandum prohibiting employees from
participating in any "UNION ACTIVITIES during office hours." Citing the Collective Negotiation
Agreement between the GSIS and the KMG which provides that "(t)he GSIS Management
agrees and hereby authorizes the duly elected executive and legislative assembly officers of the
KMG, including the chairpersons of KMG standing committees to perform the functions related to
KMG activities on official time," Velasco demanded the recall of the Memorandum of SVP
Sagcal.
In response, the GSIS issued a memorandum requiring Velasco to "submit your Counter-
Affidavit/Comment under Oath within three (3) days from receipt hereof explaining why you
should not be administratively dealt with for misconduct, discourtesy, insubordination and/or
conduct prejudicial to the best interest of the service."14 Velasco issued his reply stressing that
he wrote the letter as a duly elected union representative asserting a contractual right.
(4) RTC Case / Formal Charges / Removal from the Rolls
In connection with the two conflicting memoranda disqualifying Velasco as GSIS Legal Counsel
and assigning him as GSIS Legal Counsel in Mindanao, Velasco filed with the Regional Trial
Court (RTC) of Manila a Petition for Certiorari and Prohibition seeking to prohibit the GSIS from
enforcing the following: (1) OSVP Order No. 04-04 dated July 1, 2004 assigning him to the
Zamboanga, Iligan, Cotabato field offices; (2) July 7, 2004 Memorandum directing him to explain
his letter-reply to SVP Sagcal; and (3) July 9, 2004 Memorandum directing him to explain his
failure to comply with the Reassignment Order.
The RTC of Manila initially issued a 72-hour TRO which was later extended to twenty days.
However, the Petition was eventually dismissed by the RTC of Manila on the ground of improper
venue, said court ratiocinating that the case should be filed with the RTC of Pasay City where
the principal office of the GSIS is located. During the pendency of said case, the GSIS
nonetheless initiated the two assailed Formal Charges against Velasco:
(1) The Formal Charge dated August 10, 2004 signed by PGM Garcia, docketed as ADM. Case
No. 04-009 for Gross Discourtesy in the Course of Official Duty in connection with Velasco's
letter to SVP Sagcal;15 and
(2) The Formal Charge dated August 13, 2004 signed by PGM Garcia, docketed as ADM. Case
No. 04-010 for Refusal to Perform Official Duty; Insubordination; Misconduct; Conduct Prejudicial
to the Best Interest of the Service in connection with the two conflicting Memoranda.16
During the pendency of Velasco's Motion for Reconsideration of the RTC Resolution dismissing
the Petition for improper venue, and while Velasco continued to report to his post in the Head
Office, the GSIS issued the assailed September 1, 2004 letter17 to Velasco dropping him from
the rolls of the GSIS on the claim that allegedly he has been continuously absent without leave
(AWOL) for thirty (30) days.
(5) Petition for Certiorari with the Court of Appeals
On September 13, 2004, Velasco withdrew his Motion for Reconsideration before the RTC of
Manila which favorably acted on said withdrawal in an Order18 dated September 14, 2004. On
September 15, 2004, Velasco thereafter filed a Petition for Certiorari and Prohibition with Prayer
for Temporary Restraining Order and/or Writ of Preliminary Injunction with the Court of Appeals,
assailing GSIS OSVP Office Order No. 04-04 reassigning him to Zamboanga City; the Formal
Charge docketed as Adm. Case No. 04-010 for Insubordination; the Formal Charge docketed as
Adm. Case No. 04-009 for Gross Discourtesy in the Course of Official Duty; and the letter dated
September 1, 2004 dropping Velasco from the GSIS roll of employees.
On September 17, 2004, the Court of Appeals issued a Resolution19 granting Velasco's prayer
for a 60-day TRO enjoining the GSIS from further implementing the assailed acts. Petitioner
GSIS however refused to implement the TRO and asserted that, with Velasco's dropping from
the rolls, injunction was improper to restrain acts that had become fait accompli.
On November 30, 2010, the Court of Appeals issued the assailed Decision, the dispositive
portion of which read:
WHEREFORE, premises considered, the petition is hereby GRANTED. The Order issued
reassigning petitioner to Zamboanga; the administrative charges filed against petitioner docketed
as Adm. Case No. 04-010 for Refusal to Perform Official Duty, etc. and Adm. Case No. 04-009
for Gross Discourtesy in the Course of Official Duty; and the dropping of petitioner from the GSIS
roll of employees are hereby declared void. Accordingly, the GSIS is hereby directed to effect the
reinstatement of petitioner to his former position or, if it is no longer feasible, to another position
of equivalent rank and compensation. It is likewise ordered to pay petitioner his back salaries
pertaining to the period during which he was unlawfully dropped from employees' roll.20
The GSIS filed a Motion for Reconsideration, which was denied by the Court of Appeals in its
Resolution dated April 1, 2011.
The GSIS then filed the present Petition for Review on Certiorari, raising the following grounds
for the allowance of the same: (a) that Velasco is guilty of forum shopping; (b) that the non-
exhaustion of administrative remedies is fatal to Velasco's Petition for Certiorari before the Court
of Appeals; and (c) that petitioner is allegedly justified in its actions against Velasco since GSIS
lawyers are precluded from joining the employees' organization or union according to a ruling
issued by the Public Sector Labor-Management Council (PSL-MC).21
THIS COURT'S RULING
Forum Shopping
Petitioner alleged that Velasco is guilty of forum shopping for filing a Petition for Certiorari with
the Court of Appeals (a) while his motion for reconsideration in Civil Case No. 04110451 was still
pending before the RTC of Manila, Branch 22; and (b) during the pendency of CA-G.R. SP No.
86130 with another division of the appellate court.
According to jurisprudence, forum shopping is the act of a party against whom an adverse
judgment has been rendered in one forum, of seeking another (and possibly favorable) opinion
in another forum other than by appeal or special civil action of certiorari, or the institution of two
(2) or more actions or proceedings grounded on the same cause on the supposition that one or
the other court might look with favor upon the party. Where the elements of litis pendentia are
not present or where a final judgment in one case will not amount to res judicata in the other,
there is no forum shopping.22
Based on the facts on record, we see no reason to disturb the Court of Appeals' ruling that
respondent Velasco was not guilty of forum shopping as succinctly explained in its November 30,
2010 Decision:
In the case at bar, although petitioner filed a petition for prohibition before the RTC and,
thereafter, filed substantially the same petition before this Court, the fact remains that before
filing the instant petition, he first filed a notice of withdrawal of his Motion for Reconsideration
with the RTC which was granted. It is also worthy to note that while both petitions filed by
petitioner before the RTC and this Court assail his reassignment Order to Zamboanga, the
petition before US differs because petitioner is, in addition, assailing the formal charges
against him as well as his severance from employment. Hence, petitioner could not be said
to have resorted to two different courts for the purpose of obtaining the same relief.
To further bolster their allegation that petitioner is guilty of forum shopping, respondents aver
that a similar case was also filed by [Velasco] against respondent Garcia in this Court docketed
as CA-G.R. SP No. 86130 which was already dismissed on September 17, 2004.
WE perused the September 17, 2004 Resolution of this Court in CA-G.R. SP No. 86130 and
found that the cause of action and relief prayed for by herein petitioner in that case were not the
same as in this petition. In this case, petitioner prays to declare OSVP Order No. 04-04
transferring petitioner to Zamboanga; the formal charges against petitioner dated August 10,
2004 and August 13, 2004; and the letter informing petitioner that he is already dropped from
GSIS roll of employment as void and illegal. On the other hand, the objective of the action in CA-
G.R. SP No. 86130 was to declare as illegal and void respondent Garcia's Office Order dated
June 25, 2004 by which the respondent allegedly usurped the petitioner's power under the law
and the collective negotiation agreement to choose a representative to the GSIS Personnel
Selection and Promotion Board and to prohibit the respondent from convening said Boards from
transacting business without the legitimate union representative.23 (Emphases supplied.)
We have held that what is truly important to consider in determining whether forum shopping
exists or not is the vexation caused the courts and parties-litigants by a party who asks different
courts and/or administrative agencies to rule on the same or related causes and/or grant the
same or substantially the same reliefs, in the process creating the possibility of conflicting
decisions being rendered by different fora upon the same issues.24 In this instance, there was no
danger that two different fora might render conflicting decisions as the petition before the Court
of Appeals was the only case pending which involved the specific issues raised therein.
Exhaustion of Administrative Remedies
and the Alleged Illegality of Velasco's
Union Involvement
We discuss the second and third issues raised by petitioner jointly as the resolution of the
procedural issue of exhaustion of administrative remedies hinges on the substantive issue of
whether or not petitioner's actions and issuances involving respondent Velasco were patently
illegal and/or tainted with bad faith.
Petitioner claims that Velasco violated the doctrine of exhaustion of administrative remedies by
filing a Petition for Certiorari and Prohibition with the Court of Appeals instead of assailing his
dismissal with the CSC. The Court of Appeals ruled that the assailed GSIS issuances
were patently illegal and, hence, the case falls within at least one of several exceptions to the
doctrine on exhaustion of administrative remedies. The exceptions, according to Province of
Zamboanga del Norte v. Court of Appeals,25 are: (1) when there is a violation of due process; (2)
when the issue involved is purely a legal question; (3) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction; (4) when there is estoppel on the part of the
administrative agency concerned; (5) when there is irreparable injury; (6) when the respondent is
a department secretary whose acts, as an alter ego of the President, bears the implied and
assumed approval of the latter; (7) when to require exhaustion of administrative remedies would
be unreasonable; (8) when it would amount to a nullification of a claim; (9) when the subject
matter is a private land in land case proceedings; (10) when the rule does not provide a plain,
speedy and adequate remedy; (11) when there are circumstances indicating the urgency of
judicial intervention, and unreasonable delay would greatly prejudice the complainant; (12) when
no administrative review is provided by law; (13) where the rule of qualified political agency
applies; and (14) when the issue of non-exhaustion of administrative remedies has been
rendered moot.
After a judicious examination of the records, we uphold the Court of Appeals' ruling that the
present case falls within the recognized exceptions to the rule regarding exhaustion of
administrative remedies. Before going into the merits of the case, we dispel the procedural
concerns raised in the dissent.
The Dissenting Opinion submits, citing Merida Water District v. Bacarro,26 that the test to
determine whether or not there is patent illegality is "whether there exists a factual issue to be
resolved to arrive at the conclusion of illegality."27 Accordingly, the notion of patent illegality in
the case at bar is negated by the presumption of good faith on the part of the GSIS officers
involved, and the presumption of regularity of official acts. Determination of bad faith and
irregularity are questions of fact, which should allegedly bar direct recourse before the courts in a
special civil action.
The Court's decision in Republic of the Philippines v. Lacap28 explained the rationale behind the
doctrine of exhaustion of administrative remedies in this wise:
The general rule is that before a party may seek the intervention of the court, he should first avail
of all the means afforded him by administrative processes. The issues which administrative
agencies are authorized to decide should not be summarily taken from them and submitted to a
court without first giving such administrative agency the opportunity to dispose of the same after
due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary
jurisdiction; that is, courts cannot or will not determine a controversy involving a question which
is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and services of the administrative
tribunal to determine technical and intricate matters of fact. (Emphasis supplied, citations
omitted.)
In Merida, the factual question involved was the determination of the current water rate from
which the allowable 60% increase can be computed in accordance with existing rules and
regulations. Obviously, that was a highly technical matter that required the special knowledge
and expertise of the proper administrative agency to resolve. The issue of whether petitioner
GSIS's memoranda and issuances against respondent Velasco were attended by bad faith is
hardly the kind of "technical and intricate" factual matter that requires prior resolution by an
administrative body with special expertise or knowledge. To be sure, in Department of Finance v.
Dela Cruz, Jr.,29 we held that a case that assails the mass detail and reassignment of DOF
employees as "patently illegal, arbitrary, and oppressive" falls among the exceptions to the
doctrine of exhaustion of administrative remedies and thus, we upheld said employees' direct
recourse to the courts as there was no need to resort to remedies with the CSC. In another
example of bitterly contested litigation between the parties in the case at bar, The Board of
Trustees of the Government Service Insurance System v. Velasco,30 we held that the RTC, not
the CSC, had jurisdiction over a petition for prohibition with prayer for writ of preliminary
injunction even if it involved a civil service matter. Verily, the principle that all personnel actions
must first be referred to the CSC is not an iron-clad rule.
The dissent's reliance on Corsiga v. Defensor31 is misplaced as no court therein issued a
judgment on the merits. What was appealed to the Court was a preliminary order denying a
motion to dismiss on jurisdictional grounds. Even more importantly, the Court
in Corsiga expressly stated that the employee failed to present evidence of the invalidity of his
reassignment and for that reason the reassignment was presumed regular. In the present case,
the Court of Appeals found, after due proceedings, that respondent duly proved his factual
allegations while petitioner failed to refute the evidence presented against it. There is no cause
for the dissent to assert that petitioner was denied due process for it had every opportunity
before the Court of Appeals to submit its countervailing evidence but petitioner chose to present
purely technical objections to respondent's petition and pinned its defense on the presumptions
of good faith and of regularity in the performance of official duty which are both rebuttable by
proof.
This Court cannot accept the proposition that a mere allegation of good faith by the issuers of
the assailed official acts automatically takes the disputed action out of its being patently illegal
and thereby necessitates the application of the doctrine of exhaustion of administrative
remedies. Bad faith and irregularities can be evident from the assailed acts themselves, in which
case the courts should not simply tum a blind eye on the ground that it is the administrative
agencies which must take the first look. It is precisely in cases when the bad faith and irregularity
are so blatant that immediate recourse to the courts is necessary in order to nullify a capricious
and whimsical exercise of authority.
This Court finds no reversible error on the part of the Court of Appeals in making a finding of
illegality and bad faith in the GSIS's actions against Velasco based on the undisputed facts on
record.
Petitioner alleged that "the Court of Appeals failed to consider that in all the cases filed by
respondent, his basic allegation stemmed from just one single act, i.e., his illegal activities as
union president of the KMG which led to the GSIS's taking of necessary measures to protect its
interest."32
Interestingly, in the decision of the Court of Appeals in CA-G.R. SP No. 73170, which was
affirmed by this Court in the consolidated cases, G.R. Nos. 157383 and 174137, the GSIS's
officers were perpetually restrained from hearing and investigating the administrative case
against Velasco and Molina for acts allegedly in betrayal of the confidential nature of their
positions and in defiance of the Rules and Regulations on Public Sector Unionism, without
prejudice to pursuing the same with the CSC or any other agency of the government as may be
allowed by law. Even then the appellate court recognized that the investigation should not be
done by the GSIS but by the CSC or any other impartial and disinterested tribunal. Yet, the GSIS
undertook to investigate Velasco on new formal charges in this case, springing from essentially
similar grounds of breach of confidentiality of position and union activities. We now examine
these new formal charges.
On the issue of the validity of the reassignment order, upon which the charge of Insubordination
depends, we sustain the Court of Appeals' factual finding that the GSIS never denied, much less
refuted, the various memoranda presented by Velasco proving that there was a dire shortage of
lawyers in the Manila Head Office at the time of his reassignment to the Mindanao field offices.
There is nothing in the records to show that other lawyers from the Head Office were also sent
out to augment the legal staff in the field offices. On the contrary, Velasco demonstrated that due
to the extreme lack of manpower in the Head Office a lawyer from the one of the field offices was
temporarily detailed in the Head Office until the vacancies therein were filled. Although the first
paragraph of the reassignment order stated that it was for a period of ninety (90) days, the last
paragraph states that the order shall take effect immediately and shall remain effective until
further notice. What is indubitable from the records was that Velasco was being singled out for
indefinite reassignment due to his election as union president. In all, this Court concurs with the
appellate court that there was "no valid cause for the reassignment" and "the reassignment order
was issued to prevent [Velasco] from actually and aggressively leading the union['s] activities
and in the process weaken unionism in [the] GSIS main office."33 As Velasco's reassignment is
invalid, there was no cause to charge him with Insubordination.
As for the second formal charge, the difficulty of finding an actionable case of gross discourtesy
from the following letter can be considered by the courts in determining whether there is gross
abuse of authority on the part of petitioner:
1 July 2004
SVP LETICIA P. SAGCAL
GSIS Social Insurance Group
Re: Memorandum dated 28 June 2004.
Dear SVP Sagcal,
In behalf of the Kapisanan ng mga Manggagawa sa GSIS (KMG), we bring to your attention the
above subject memorandum which prohibits employees from "participation in any UNION
ACTIVITIES".
Please be reminded that under Section 3 of the GSIS-KMG Collective Negotiation Agreement for
2002-2005 it is provided as follows:
Section 3. Authorized KMG Activities on Official Time. The GSIS Management agrees and
hereby authorizes the duly elected executive and legislative assembly officers of the KMG,
including the chairpersons of KMG standing committees to perform the functions related to KMG
activities on official time, subject to the following conditions:
a. Only those authorized in writing from time to time by the KMG President or his duly
authorized representatives shall enjoy the privilege; and
b. The GSIS Management likewise agrees that attendance by duly authorized union
representatives to workers' education, seminars, meetings, conventions, conferences
shall be allowed on Official Time, subject also to the said two (2) conditions. x x x
Additionally, our CNA likewise states, and we quote the pertinent part:
ARTICLE V
NO STRIKE NO LOCKOUT
GSIS Management shall also respect the rights of the employees to air out their sentiments
through peaceful concerted activities during allowable hours, subject to reasonable office rules
and regulations on the use of office premises.
Clearly, your memorandum absolutely prohibiting participation of union members, including duly
elected executive, legislative officers, and chairpersons of standing committees, from
participating in union activities is a gross and patent violation of our CNA. Peaceful concerted
activities is also [permissible], subject only to reasonable office rules and regulations, and is not
absolutely prohibited by law, and neither can you prohibit the same.
We demand that your (sic) recall within two (2) days your unlawful memorandum dated 28 June
2004. Your failure to do so will compel us to file the corresponding administrative and criminal
complaints against you before the appropriate body.34
Even without the presentation of evidence before an administrative body, the existence of bad
faith and the arbitrary and despotic abuse of power can easily be gleaned from an administrative
case of gross discourtesy ensuing from the mere issuance of the above letter by a union
president. The exercise of even a statutorily enshrined power when done in a whimsical and
capricious manner amounting to lack of jurisdiction is properly assailed in a special civil action
under Rule 65 before the courts.
In any event, the merits of the formal charges of Insubordination and Gross Discourtesy against
Velasco need not even be scrutinized by the Court. Despite initiating administrative
investigations in relation to the Formal Charge docketed as Adm. Case No. 04-010 (for
Insubordination, etc.) and the Formal Charge docketed as 04-009 (for Gross Discourtesy),
the GSIS never issued a decision or ruling in these administrative cases. In the end,
Velasco was dropped from the rolls for his purported 30 days continuous absence
without authorized leave, a separate and distinct matter, not included in the charges
stated in the two formal charges pending investigation.
The Court cannot fault respondent for claiming that his separation from the service was without
valid ground and done without due process. Furthermore, this Court fully agrees with the Court
of Appeals that Velasco's dropping from the rolls was unwarranted when he did not abandon his
post.
Petitioner GSIS did not dispute the fact that Velasco continued to report at the Head Office while
he was seeking clarification from the GSIS regarding its conflicting memoranda and while
various contentious issues between the parties were pending before the courts and the PSL-MC.
The records bear out that correspondence and memoranda were personally served on Velasco
by the GSIS, including the notice of his dropping from the rolls, since he could be readily found
at his work station in the Head Office. On the other hand, the records are bereft of proof that the
GSIS in good faith gave notice to Velasco that he would be considered absent without
authorized leave for his failure to report for duty in the Mindanao field offices. Significantly, the
GSIS itself narrated in the petition that Velasco was able to secure from the RTC a 72-hour TRO
on July 20, 2004 that was extended for another 20 days, giving him additional justification to
defer taking up his Mindanao posting while his standing disputes with management were
pending litigation.
In Batangas State University v. Bonifacio,35 a teacher was dropped from the rolls by the
petitioner state university for failure to immediately report to his new detail at the office of the
university president and instead he continued to fulfill his duties as a teacher and coach of the
basketball team. We held that where there is no abandonment or clear proof of the intention to
sever the employer-employee relationship, an employee cannot be dropped from the rolls.
Furthermore, despite the proviso in Section 63, Rule XVI of the Omnibus Civil Service Rules and
Regulations that an employee continuously absent without approved leave for at least thirty (30)
days may be dropped from the rolls without prior notice, we ruled that there was bad faith on the
part of the employer and a violation of an employee's rights to security of tenure and due
process when the employer ignored the employee's presence in the school, did not give him the
opportunity to explain his purported absences and thereafter peremptorily dropped him from the
rolls.
Certainly, the gross violation of Velasco's due process rights in the matter of his dropping from
the rolls not only contribute to the patent illegality of his separation from the service but is in itself
a recognized exception to the rule on exhaustion of administrative remedies.36
The Dissenting Opinion rejects the applicability of Batangas State University, and argued,
echoing the words of petitioner, that while there was good faith on the part of the employee
in BSU to report to his new detail, Velasco showed bad faith when he "wrote a letter conveying
his resistance to the assignment order." The Court should not adopt petitioner's arrogant stance
of treating a mere clarificatory letter as an act of defiance and gross discourtesy. The despotic
notion that an employee may not even ask for clarification of inconsistent orders precisely
manifests the grave abuse of discretion on the part of petitioner. It shows very clearly that
petitioner is bent on dismissing Velasco for whatever imagined wrong it can throw at him, and
force. him to file a case for each new accusation.
Be that as it may, the Dissenting Opinion misreads the significance of BSU, which is cited to
emphasize that an employee who reports for work cannot be summarily dropped from the rolls
for being "continuously absent without approved leave for at least 30 calendar days." BSU held
that ignoring said employee instead of summoning him to explain his alleged absences does not
only show bad faith, but is itself a violation of the constitutional guarantees of security of tenure
and due process. Violation of due process is the first and foremost exception to the doctrine of
exhaustion of administrative remedies in settled jurisprudence other than BSU, making it entirely
irrelevant that there was prior resort to the CSC in BSU.
The dissent asserts that bad faith is never presumed; it is a conclusion to be drawn from the
facts.37 However, intent, being a state of mind, is rarely susceptible of direct proof, but must
ordinarily be inferred from the facts.[38 Consequently, when the facts – namely the acts from
which bad faith can be inferred – already appears on record and are uncontroverted, the legal
consequence of such acts becomes a question of law which falls under the exceptions to the
rule on exhaustion of administrative remedies as well. A question of law exists when the doubt or
controversy concerns the correct application of law or jurisprudence to a certain set of facts; or
when the issue does not call for an examination of the probative value of the evidence
presented, the truth or falsehood of facts being admitted.39
Petitioner's improper motive in its actions and issuances against respondent is plainly apparent
even in its submissions to this Court. In the petition, the GSIS averred it "lost all faith and
confidence in respondent when he ran for and was elected KMG President"40 and that it was
Velasco's purported "illegal activities as union president of the KMG which led to the GSIS's
taking of necessary measures to protect its interest."41 Indeed, this history of antagonism
between Velasco and the GSIS's previous leadership is a matter of record not only in this case
but also in G.R. Nos. 157383 and 174137, which arose from the charges of misconduct against
Velasco for participating and/or leading protests against management and former GSIS
President Winston F. Garcia for alleged corruption.
As the GSIS admits in the petition, it was Velasco himself who submitted the issue of his
eligibility to hold the position of union president for resolution by the PSL-MC to settle his dispute
with management.42 However, the GSIS pre-empted the ruling of the PSL-MC and issued the
reassignment order, the formal charges of Insubordination and Gross Discourtesy and the order
dropping Velasco from the rolls long before the PSL-MC could dispose of the matter in its
Resolution No. 02, s. 2005 dated May 4, 2005, now being cited by the GSIS as its main basis for
the legality of its actions against Velasco. It is the height of injustice and absurdity to allow the
GSIS to now rely on this issuance when it did not even exist in 2004 when the GSIS issued the
assailed memoranda and orders that are the subject matter of this case.
It bears repeating as well that the PSL-MC merely ruled that lawyers of the GSIS Legal Services
Group are ineligible to join and hold elective positions in the union.43 There was no statement in
PSL-MC Resolution No. 02, s. 2005 that the holding of a position in the union was a ground to
discipline or dismiss Velasco. Even in the GSIS's Memorandum dated June 29, 2004 advising
Velasco of his inelibility to hold the position of GSIS Attorney while serving as union president on
the ground of conflict of interest, there was no mention of any disciplinary action to be taken but
only that Velasco was given the options to either (a) seek a transfer to another position not
covered by the prohibition or (b) go on extended leave of absence for the term of his office,
subject to existing office rules and regulations. Yet, despite the fact that the GSIS did not see fit
to discipline or sanction Velasco for his union activities in the June 29, 2004 Memorandum, it
nonetheless engaged in a series of actions to harass Velasco, to keep him away from the Head
Office (by inducing him to seek a transfer or to take a leave and, failing in that, reassigning him)
and to eventually cause Velasco's separation from the service on whatever ground and by
whatever means it could conceive.
Petitioner's assertion that the new formal charges against Velasco and his dismissal from the
service are measures to protect the interests of the GSIS from Velasco's purportedly illegal
activities as union president likewise violate Velasco's right to due process as he is being
indirectly charged for something not mentioned in the Formal Charges. To reiterate, Velasco was
never administratively charged for what the GSIS termed as his "illegal" service as union
president and therefore, Velasco could not have been validly dismissed from the service on that
ground. Moreover, the GSIS could not have possibly relied on the aforementioned PSL-MC
Resolution to justify Velasco's dismissal or separation from the service as the same was
issued more than eight (8) months after Velasco had already been dropped from the rolls.
Prior to the resolution by the PSL-MC of the question of Velasco's eligibility to join the union and
serve as union president, the GSIS had no basis to act against Velasco on that ground other
than the opinion of its own chief legal counsel. For this reason, the GSIS was bound to respect in
good faith Velasco's election as union president of the KMG until the PSL-MC could issue its
opinion on the grievance raised by Velasco. As the Court of Appeals correctly emphasized, "[t]he
right to unionize or to form organizations is now explicitly recognized and granted to employees
in both the governmental and private sectors"44 and that the Bill of Rights itself demands that
such right shall not be abridged.45
In the private sector, the Court has held that the reassignment of an employee is illegal if it is
used as a subterfuge by the employer to rid himself of an undesirable worker or when the real
reason is to penalize an employee for his union activities and when there is no genuine business
urgency that necessitated the transfer.46 Neither does the Court condone a reassignment done
by a private employer on the pretext of eventually removing an employee with whom the
employer felt "uncomfortable" because it doubted the employee's loyalty.47 This Court will not be
induced into setting a precedent that a government employer can hide behind the presumption of
regularity in the performance of official duty in spite of evidence of illegal, discriminatory and
oppressive acts against labor extant in the records.
In closing, it is worth recalling that the non-exhaustion of administrative remedies is a procedural
matter that, time and again, this Court has held should be set aside in the interest of substantial
justice.48 This is particularly true in this case when the application of said doctrine would in effect
deny respondent reliefs despite his meritorious claim. The insistence in the Dissenting Opinion
that the Court of Appeals should have ignored petitioner's manifest display of arrogance and
disregard of court orders on the ground that bad faith is a factual issue misses the basic principle
that the Court of Appeals, unlike this Court, is mandated to rule on questions of fact.49 The
Dissenting Opinion's proposed reversal of the factual findings and the judgment on the merits of
the Court of Appeals on the ground of a supposed procedural misstep is unjust and unduly
burdens a party already aggrieved by a whimsical, capricious, and despotic abuse of power with
a circuitous and ineffectual remedy. Accordingly, this Court holds that the Court of Appeals
properly decided the substantive issues when the evidence it needed to resolve the same was
already before it.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The Court of Appeals Decision
dated November 30, 2010 and Resolution dated April 1, 2011 in CA-G.R. SP No. 86365
are AFFIRMED.
SO ORDERED.
RIGHT TO SELF-ORGANIZATION
G.R. No. 170132 December 6, 2006
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his
capacity as GSIS President & General Manager, petitioners,
vs.
KAPISANAN NG MGA MANGGAGAWA SA GSIS, respondents.
DECISION
GARCIA, J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government
Service Insurance System (GSIS) and its President and General Manager Winston F. Garcia
(Garcia, for short) assail and seek to nullify the Decision1 dated June 16, 2005 of the Court of
Appeals (CA) in CA-G.R. SP No. 87220, as reiterated in its Resolution2 of October 18, 2005
denying Garcia's motion for reconsideration.
The recourse is cast against the following setting:
A four-day October 2004 concerted demonstration, rallies and en masse walkout waged/held in
front of the GSIS main office in Roxas Boulevard, Pasay City, started it all. Forming a huge part
of the October 4 to October 7, 2004 mass action participants were GSIS personnel, among them
members of the herein respondent Kapisanan Ng Mga Manggagawa sa GSIS ("KMG" or the
"Union"), a public sector union of GSIS rank-and-file employees. Contingents from other
government agencies joined causes with the GSIS group. The mass action's target appeared to
have been herein petitioner Garcia and his management style. While the Mayor of Pasay City
allegedly issued a rally permit, the absence of the participating GSIS employees was not
covered by a prior approved leave.3
On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a
memorandum directing 131 union and non-union members to show cause why they should not
be charged administratively for their participation in said rally. In reaction, KMG's counsel, Atty.
Manuel Molina, sought reconsideration of said directive on the ground, among others, that the
subject employees resumed work on October 8, 2004 in obedience to the return-to-work order
thus issued. The plea for reconsideration was, however, effectively denied by the filing, on
October 25, 2004, of administrative charges against some 110 KMG members for grave
misconduct and conduct prejudicial to the best interest of the service.4
What happened next is summarized by the CA in its challenged decision of June 16, 2005, albeit
the herein petitioners would except from some of the details of the appellate court's narration:
Ignoring said formal charges, KMG, thru its President, Albert Velasco, commenced the
instant suit on November 2, 2004, with the filing of the Petition for Prohibition at bench.
 On the ground that its members should not be made to explain why they supported their
union's cause, petitioner [KMG] faulted respondent [Garcia] with blatant disregard of Civil
Service Resolution No. 021316, otherwise known as the Guidelines for Prohibited Mass
Action, Section 10 of which exhorts government agencies to "harness all means within
their capacity to accord due regard and attention to employees' grievances and facilitate
their speedy and amicable disposition through the use of grievance machinery or any
other modes of settlement sanctioned by law and existing civil service rules." Two
supplements to the foregoing petition were eventually filed by KMG. The first, …
apprised [the CA] of the supposed fact that its Speaker, Atty. Molina, had been placed
under preventive suspension for 90 days and that the formal charges thus filed will not
only deprive its members of the privileges and benefits due them but will also disqualify
them from promotion, step increment adjustments and receipt of monetary benefits,
including their 13th month pay and Christmas bonuses. The second, xxx manifested that,
on December 17, 2004, respondent [Garcia] served a spate of additional formal charges
against 230 of KMG's members for their participation in the aforesaid grievance
demonstrations.
In his December 14, 2004 comment to the foregoing petition, respondent [Garcia]
averred that the case at bench was filed by an unauthorized representative in view of the
fact that Albert Velasco had already been dropped from the GSIS rolls and, by said
token, had ceased to be a member – much less the President – of KMG. Invoking the
rule against forum shopping, respondent [Garcia] called [the CA's] attention to the
supposed fact that the allegations in the subject petition merely duplicated those already
set forth in two petitions for certiorari and prohibition earlier filed by Albert Velasco ….
Because said petitions are, in point of fact, pending before this court as CA-G.R. SP Nos.
86130 and 86365, respondent [Garcia] prayed for the dismissal of the petition at bench
….5 (Words in bracket added.)
It appears that pending resolution by the CA of the KMG petition for prohibition in this case, the
GSIS management proceeded with the investigation of the administrative cases filed. As
represented in a pleading before the CA, as of May 18, 2005, two hundred seven (207) out of
the two hundred seventy eight (278) cases filed had been resolved, resulting in the exoneration
of twenty (20) respondent-employees, the reprimand of one hundred eighty two (182) and the
suspension for one month of five (5).6
On June 16, 2005, the CA rendered the herein assailed decision7 holding that Garcia's "filing of
administrative charges against 361 of [KMG's] members is tantamount to grave abuse of
discretion which may be the proper subject of the writ of prohibition." Dispositively, the decision
reads:
WHEREFORE, premises considered, the petition [of KMG] is GRANTED and respondent
[Winston F. Garcia] is hereby PERPETUALLY ENJOINED from implementing the issued
formal charges and from issuing other formal charges arising from the same facts and
events.
SO ORDERED. (Emphasis in the original)
Unable to accept the above ruling and the purported speculative factual and erroneous legal
premises holding it together, petitioner Garcia sought reconsideration. In its equally assailed
Resolution8 of October 18, 2005, however, the appellate court denied reconsideration of its
decision.
Hence, this recourse by the petitioners ascribing serious errors on the appellate court in granting
the petition for prohibition absent an instance of grave abuse of authority on their part.
We resolve to GRANT the petition.
It should be stressed right off that the civil service encompasses all branches and agencies of
the Government, including government-owned or controlled corporations (GOCCs) with original
charters, like the GSIS,9 or those created by special law.10 As such, employees of covered
GOCCs are part of the civil service system and are subject to circulars, rules and regulations
issued by the Civil Service Commission (CSC) on discipline, attendance and general
terms/conditions of employment, inclusive of matters involving self-organization, strikes,
demonstrations and like concerted actions. In fact, policies established on public sector unionism
and rules issued on mass action have been noted and cited by the Court in at least a
case.11 Among these issuances is Executive Order (EO) No. 180, series of 1987, providing
guidelines for the exercise of the right to organize of government employees. Relevant also is
CSC Resolution No. 021316 which provides rules on prohibited concerted mass actions in the
public sector.
There is hardly any dispute about the formal charges against the 278 affected GSIS employees
– a mix of KMG union and non-union members - having arose from their having gone on
unauthorized leave of absence (AWOL) for at least a day or two in the October 4 to 7, 2004
stretch to join the ranks of the demonstrators /rallyists at that time. As stated in each of the
formal charges, the employee's act of attending, joining, participating and taking part in the
strike/rally is a transgression of the rules on strike in the public sector. The question that
immediately comes to the fore, therefore, is whether or not the mass action staged by or
participated in by said GSIS employees partook of a strike or prohibited concerted mass action.
If in the affirmative, then the denounced filing of the administrative charges would be prima
facie tenable, inasmuch as engaging in mass actions resulting in work stoppage or service
disruption constitutes, in the minimum, the punishable offense of acting prejudicial to the best
interest of the service.12 If in the negative, then such filing would indeed smack of arbitrariness
and justify the issuance of a corrective or preventive writ.
Petitioners assert that the filing of the formal charges are but a natural consequence of the
service-disrupting rallies and demonstrations staged during office hours by the absenting GSIS
employees, there being appropriate issuances outlawing such kinds of mass action. On the other
hand, the CA, agreeing with the respondent's argument, assumed the view and held that the
organized demonstrating employees did nothing more than air their grievances in the exercise of
their "broader rights of free expression"13 and are, therefore, not amenable to administrative
sanctions. For perspective, following is what the CA said:
Although the filing of administrative charges against [respondent KMG's] members is well
within [petitioner Garcia's] official [disciplinary] prerogatives, [his] exercise of the power
vested under Section 45 of Republic Act No. 8291 was tainted with arbitrariness and
vindictiveness against which prohibition was sought by [respondent]. xxx the fact that the
subject mass demonstrations were directed against [Garcia's] supposed
mismanagement of the financial resources of the GSIS, by and of itself, renders the filing
of administrative charges against [KMG's] member suspect. More significantly, we find
the gravity of the offenses and the sheer number of persons … charged administratively
to be, at the very least, antithetical to the best interest of the service….
It matters little that, instead of the 361 alleged by petitioner, only 278 charges were
actually filed [and] in the meantime, disposed of and of the said number, 20 resulted to
exoneration, 182 to reprimand and 5 to the imposition of a penalty of one month
suspension. Irrespective of their outcome, the severe penalties prescribed for the offense
with which petitioner's members were charged, to our mind, bespeak of bellicose and
castigatory reaction …. The fact that most of the employees [Garcia] administratively
charged were eventually meted with what appears to be a virtual slap on the wrist even
makes us wonder why respondent even bothered to file said charges at all. xxx.
Alongside the consequences of the right of government employees to form, join or assist
employees organization, we have already mentioned how the broader rights of free
expression cast its long shadow over the case. xxx we find [petitioner Garcia's] assailed
acts, on the whole, anathema to said right which has been aptly characterized as
preferred, one which stands on a higher level than substantive economic and other
liberties, the matrix of other important rights of our people. xxx.14 (Underscoring and
words in bracket added; citations omitted.)
While its decision and resolution do not explicitly say so, the CA equated the right to form
associations with the right to engage in strike and similar activities available to workers in the
private sector. In the concrete, the appellate court concluded that inasmuch as GSIS employees
are not barred from forming, joining or assisting employees' organization, petitioner Garcia could
not validly initiate charges against GSIS employees waging or joining rallies and demonstrations
notwithstanding the service-disruptive effect of such mass action. Citing what Justice Isagani
Cruz said in Manila Public School Teachers Association [MPSTA] v. Laguio, Jr.,15 the appellate
court declared:
It is already evident from the aforesaid provisions of Resolution No. 021316 that
employees of the GSIS are not among those specifically barred from forming, joining or
assisting employees organization such as [KMG]. If only for this ineluctable fact, the
merit of the petition at bench is readily discernible.16
We are unable to lend concurrence to the above CA posture. For, let alone the fact that it
ignores what the Court has uniformly held all along, the appellate court's position is contrary to
what Section 4 in relation to Section 5 of CSC Resolution No. 02131617 provides. Besides, the
appellate court's invocation of Justice Cruz's opinion in MPSTA is clearly off-tangent, the good
Justice's opinion thereat being a dissent. It may be, as the appellate court urged¸ that the
freedom of expression and assembly and the right to petition the government for a redress of
grievances stand on a level higher than economic and other liberties. Any suggestion, however,
about these rights as including the right on the part of government personnel to strike ought to
be, as it has been, trashed. We have made this abundantly clear in our past determinations. For
instance, in Alliance of Government Workers v. Minister of Labor and Employment,18 a case
decided under the aegis of the 1973 Constitution, an en banc Court declared that it would be
unfair to allow employees of government corporations to resort to concerted activity with the ever
present threat of a strike to wring benefits from Government. Then came the 1987 Constitution
expressly guaranteeing, for the first time, the right of government personnel to self-
organization19 to complement the provision according workers the right to engage in "peaceful
concerted activities, including the right to strike in accordance with law."20
It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the Court
resolved Bangalisan v. Court of Appeals.21 In it, we held, citing MPSTA v. Laguio, Jr.,22 that
employees in the public service may not engage in strikes or in concerted and unauthorized
stoppage of work; that the right of government employees to organize is limited to the formation
of unions or associations, without including the right to strike.
Jacinto v. Court of Appeals23 came next and there we explained:
Specifically, the right of civil servants to organize themselves was positively recognized
in Association of Court of Appeals Employees vs. Ferrer-Caleja. But, as in the exercise
of the rights of free expression and of assembly, there are standards for allowable
limitations such as the legitimacy of the purpose of the association, [and] the overriding
considerations of national security . . . .
As regards the right to strike, the Constitution itself qualifies its exercise with the
provision "in accordance with law." This is a clear manifestation that the state may, by
law, regulate the use of this right, or even deny certain sectors such right. Executive
Order 180 which provides guidelines for the exercise of the right of government workers
to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under
pain of administrative sanctions, all government officers and employees from staging
strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will
result in temporary stoppage or disruption of public service" by stating that the Civil
 Service law and rules governing concerted activities and strikes in government service
shall be observed. (Emphasis and words in bracket added; citations omitted)
And in the fairly recent case of Gesite v. Court of Appeals,24 the Court defined the limits of the
right of government employees to organize in the following wise:
It is relevant to state at this point that the settled rule in this jurisdiction is that employees
in the public service may not engage in strikes, mass leaves, walkouts, and other forms
of mass action that will lead in the temporary stoppage or disruption of public service.
The right of government employees to organize is limited to the formation of unions or
associations only, without including the right to strike,
adding that public employees going on disruptive unauthorized absences to join concerted mass
actions may be held liable for conduct prejudicial to the best interest of the service.
Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the negative
the poser of whether or not the right of government employees to self-organization also includes
the right to strike, stated:
When we proposed this amendment providing for self organization of government
employees, it does not mean that because they have the right to organize, they have
also the right to strike. That is a different matter. xxx25
With the view we take of the events that transpired on October 4-7, 2004, what respondent's
members launched or participated in during that time partook of a strike or, what contextually
amounts to the same thing, a prohibited concerted activity. The phrase "prohibited concerted
activity" refers to any collective activity undertaken by government employees, by themselves or
through their employees' organization, with the intent of effecting work stoppage or service
disruption in order to realize their demands or force concessions, economic or otherwise; it
includes mass leaves, walkouts, pickets and acts of similar nature.26 Indeed, for four straight
days, participating KMG members and other GSIS employees staged a walk out and waged or
participated in a mass protest or demonstration right at the very doorstep of the GSIS main office
building. The record of attendance27 for the period material shows that, on the first day of the
protest, 851 employees, or forty eight per cent (48%) of the total number of employees in the
main office (1,756) took to the streets during office hours, from 6 a.m. to 2 p.m.,28 leaving the
other employees to fend for themselves in an office where a host of transactions take place
every business day. On the second day, 707 employees left their respective work stations, while
538 participated in the mass action on the third day. A smaller number, i.e., 306 employees, but
by no means an insignificant few, joined the fourth day activity.
To say that there was no work disruption or that the delivery of services remained at the usual
level of efficiency at the GSIS main office during those four (4) days of massive walkouts and
wholesale absences would be to understate things. And to place the erring employees beyond
the reach of administrative accountability would be to trivialize the civil service rules, not to
mention the compelling spirit of professionalism exacted of civil servants by the Code of Conduct
and Ethical Standards for Public Officials and Employees. 29
The appellate court made specific reference to the "parliament of the streets," obviously to lend
concurrence to respondent's pretension that the gathering of GSIS employees on October 4-7,
2004 was an "assembly of citizens" out only to air grievances, not a striking crowd. According to
the respondent, a strike presupposes a mass action undertaken to press for some economic
demands or secure additional material employment benefits.
We are not convinced.
In whatever name respondent desires to call the four-day mass action in October 2004, the
stubborn fact remains that the erring employees, instead of exploring non-crippling activities
during their free time, had taken a disruptive approach to attain whatever it was they were
specifically after. As events evolved, they assembled in front of the GSIS main office building
during office hours and staged rallies and protests, and even tried to convince others to join their
cause, thus provoking work stoppage and service-delivery disruption, the very evil sought to be
forestalled by the prohibition against strikes by government personnel.30
The Court can concede hypothetically that the protest rally and gathering in question did not
involve some specific material demand. But then the absence of such economic-related demand,
even if true, did not, under the premises, make such mass action less of a prohibited concerted
activity. For, as articulated earlier, any collective activity undertaken by government employees
with the intent of effecting work stoppage or service disruption in order to realize their demands
or force concessions, economic or otherwise, is a prohibited concerted mass action31 and
doubtless actionable administratively. Bangalisan even went further to say the following: "[i]n the
absence of statute, public employees do not have the right to engage in concerted work
stoppages for any purpose."
To petitioner Garcia, as President and General Manager of GSIS, rests the authority and
responsibility, under Section 45 of Republic Act No. 8291, the GSIS Act of 1997, to remove,
suspend or otherwise discipline GSIS personnel for cause.32 At bottom then, petitioner Garcia, by
filing or causing the filing of administrative charges against the absenting participants of the
October 4-7, 2004 mass action, merely performed a duty expected of him and enjoined by law.
Regardless of the mood petitioner Garcia was in when he signed the charge sheet, his act can
easily be sustained as legally correct and doubtless within his jurisdiction.
It bears to reiterate at this point that the GSIS employees concerned were proceeded against -
and eventually either exonerated, reprimanded or meted a one-month suspension, as the case
may be - not for the exercise of their right to assemble peacefully and to petition for redress of
grievance, but for engaging in what appeared to be a prohibited concerted activity. Respondent
no less admitted that its members and other GSIS employees might have disrupted public
service.33
To be sure, arbitrariness and whimsical exercise of power or, in fine, grave abuse of discretion
on the part of petitioner Garcia cannot be simplistically inferred from the sheer number of those
charged as well as the gravity or the dire consequences of the charge of grave misconduct and
conduct prejudicial to the best interest of the service, as the appellate court made it to appear.
The principle of accountability demands that every erring government employee be made
answerable for any malfeasance or misfeasance committed. And lest it be overlooked, the mere
filing of formal administrative case, regardless of the gravity of the offense charged, does not
overcome the presumptive innocence of the persons complained of nor does it shift the burden
of evidence to prove guilt of an administrative offense from the complainant.
Moreover, the Court invites attention to its holding in MPSTA v. Laguio, Jr., a case involving over
800 public school teachers who took part in mass actions for which the then Secretary of
Education filed administrative complaints on assorted charges, such as gross misconduct. Of
those charged, 650 were dismissed and 195 suspended for at least six (6) months The Court,
however, did not consider the element of number of respondents thereat and/or the dire
consequences of the charge/s as fatally vitiating or beclouding the bona fides of the Secretary of
Education's challenged action. Then as now, the Court finds the filing of charges against a large
number of persons and/or the likelihood that they will be suspended or, worse, dismissed from
the service for the offense as indicating a strong and clear case of grave abuse of authority to
justify the issuance of a writ of prohibition.
The appellate court faulted petitioner Garcia for not first taping existing grievance machinery and
other modes of settlement agreed upon in the GSIS-KMG Collective Negotiations Agreement
(CAN) before going full steam ahead with his formal charges.34
The Court can plausibly accord cogency to the CA's angle on grievance procedure but for the
fact that it conveniently disregarded what appears to be the more relevant provision of the CNA.
We refer to Article VI which reads:
The GSIS Management and the KMG have mutually agreed to promote the principle of
shared responsibility … on all matters and decisions affecting the rights, benefits and
interests of all GSIS employees …. Accordingly, … the parties also mutually agree
that the KMG shall not declare a strike nor stage any concerted action which will disrupt
public service and the GSIS management shall not lockout employees who are members
of the KMG during the term of this agreement. GSIS Management shall also respect the
rights of the employees to air their sentiments through peaceful concerted activities
during allowable hours, subject to reasonable office rules ....35 (Underscoring added)
If the finger of blame, therefore, is to be pointed at someone for non-exhaustion of less
confrontational remedies, it should be at the respondent union for spearheading a concerted
mass action without resorting to available settlement mechanism. As it were, it was KMG, under
Atty. Alberto Velasco, which opened fire first. That none of the parties bothered to avail of the
grievance procedures under the GSIS-KMG CNA should not be taken against the GSIS. At best,
both GSIS management and the Union should be considered as in pari delicto.
With the foregoing disquisitions, the Court finds it unnecessary to discuss at length the legal
standing of Alberto Velasco to represent the herein respondent union and to initiate the
underlying petition for prohibition. Suffice it to state that Velasco, per Joint Resolution No. 04-10-
01 approved on October 5, 2004 by the KMG Joint Executive-Legislative Assembly, had ceased
to be member, let alone president, of the KMG, having previously been dropped from the rolls of
GSIS employees.36 While the dropping from the rolls is alleged to have been the subject of a CA-
issued temporary restraining order (TRO), the injunction came after Atty. Velasco had in fact
been separated from the service and it appears that the TRO had already expired.
As a final consideration, the Court notes or reiterates the following relevant incidents surrounding
the disposition of the case below:
1. The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even
going to the extent of describing as "instructive and timely" a portion, when the majority
opinion thereat, which the appellate court ignored, is the controlling jurisprudence.
2. The CA gave prominence to dispositions and rattled off holdings37 of the Court, which
appropriately apply only to strikes in the private industry labor sector, and utilized the
same as springboard to justify an inference of grave abuse of discretion. On the other
hand, it only gave perfunctory treatment if not totally ignored jurisprudence that squarely
dealt with strikes in the public sector, as if the right to strike given to unions in private
corporations/entities is necessarily applicable to civil service employees.
3. As couched, the assailed CA decision perpetually bars respondent Garcia – and
necessarily whoever succeeds him as GSIS President – not only from implementing the
formal charges against GSIS employees who participated in the October 4 - 7, 2004
mass action but also from issuing other formal charges arising from the same events.
The injunction was predicated on a finding that grave abuse of discretion attended the
exercise of petitioner Garcia's disciplinary power vested him under Section 45 of RA
8291.38 At bottom then, the assailed decision struck down as a nullity, owing to the
alleged attendant arbitrariness, not only acts that have already been done, but those yet
to be done. In net effect, any formal charge arising from the October 4-7, 2004 incident
is, under any and all circumstances, prejudged as necessarily tainted with arbitrariness
to be slain at sight.
The absurdities and ironies easily deducible from the foregoing situations are not lost on the
Court.
We close with the observation that the assailed decision and resolution, if allowed to remain
undisturbed, would likely pave the way to the legitimization of mass actions undertaken by civil
servants, regardless of their deleterious effects on the interest of the public they have sworn to
serve with loyalty and efficiency. Worse still, it would permit the emergence of a system where
public sector workers are, as the petitioners aptly put it, "immune from the minimum reckoning
for acts that [under settled jurisprudence] are concededly unlawful." This aberration would be
intolerable.
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals
are REVERSED and SET ASIDE and the writ of prohibition issued by that court is NULLIFIED.
No Cost.
SO ORDERED.
OTHER RIGHTS, I.E. LEAVES OF ABSENCES, GSIS RETIREMENT, INSURANCE
G.R. No. 138381 November 10, 2004
GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
G.R. No. 141625 November 10, 2004
GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner,
vs.
ALFREDO D. PINEDA, DANIEL GO, FELINO BULANDUS, FELICIMO J. FERRARIS, JR.,
BEN HUR PORLUCAS, LUIS HIPONIA, MARIA LUISA A. FERNANDEZ, VICTORINA JOVEN,
CORAZON S. ALIWANAG, SILVER L. MARTINES, SR., RENATO PEREZ, LOLITA CAYLAN,
DOUGLAS VALLEJO and LETICIA ALMAZAN, on their own behalf and on behalf of all
GSIS retirees with all of whom they share a common and general interest, respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On April 16, 2002, the Court promulgated a decision on these two consolidated cases partially
granting the petition in G.R. No. 138381 ("first petition") thereby reversing the Commission on
Audit’s (COA) disallowance of certain fringe benefits granted to GSIS employees. As a result, the
Court ordered the refund of amounts representing fringe benefits corresponding to those allowed
in the first petition in favor of the respondents in G.R. No. 141625 ("second petition").
The benefits which the Court ordered to be refunded included increases in longevity pay,
children’s allowance and management contribution to the Provident Fund as well as premiums
for group personal accident insurance. On the other hand, the Court affirmed the COA
disallowance of loyalty and service cash award as well as housing allowance in excess of that
approved by the COA. Amounts corresponding to these benefits were previously deducted by
GSIS from respondents’ retirement benefits in view of the COA disallowance in the first petition.
COA did not seek reconsideration of the judgment ordering said refund, which thus became final
and executory.
On August 7, 2002, the respondents in the second petition, all GSIS retirees, filed a motion for
amendatory and clarificatory judgment ("amendatory motion").1 They averred that we did not
categorically resolve the issue raised in the second petition, namely: whether or not the GSIS
may lawfully deduct any amount from their retirement benefits in light of Section 39 of Republic
Act No. 8291.
According to respondents, said provision of law clearly states that no amount whatsoever could
be legally deducted from retirement benefits, even those amounts representing COA
disallowances. They posit that we should have ordered refund not only of benefits allowed in the
first petition, but all amounts claimed, regardless of whether or not these were allowed by the
COA. These include items which were correctly disallowed by the COA in the first petition, as
well as disallowed benefits under the second petition. The latter consists of initial payment of
productivity bonus, accelerated implementation of the new salary schedule effective August 1,
1995, 1995 mid-year financial assistance and increase in clothing, rice and meal allowances.
Respondents further insist that we should have awarded damages in their favor, citing the GSIS’
alleged bad faith in making the deductions.
GSIS filed a comment2 to respondents’ amendatory motion, as directed by the Court in a
resolution dated September 3, 2002. GSIS posited that the other benefits not passed upon in the
main judgment should be understood by respondents as having been impliedly denied by this
Court. It also sought clarification of our decision insofar as it declared that there was no identity
of subject matter between the COA proceedings, from which the first petition stemmed, and
respondents’ claim under the second petition, which emanated from an order of the GSIS Board
of Trustees ("Board"). As for the damages claimed by respondents, GSIS insists that it made the
deductions in good faith for these were done in accordance with COA directives.
Respondents filed a reply3 to the comment of GSIS on September 9, 2002.
Meanwhile, respondents filed a second motion, this time for leave to file a motion for
discretionary and partial execution4 ("motion for execution"). They prayed that GSIS be ordered
to effect the refund, as finally adjudged in our decision, pending resolution of their amendatory
motion as to the other deducted amounts. We granted the motion for execution on September 3,
2002.
Subsequently, on December 26, 2002, counsel for respondents, Atty. Agustin Sundiam, filed a
motion for entry and enforcement of attorney’s lien5 ("motion for charging lien") and a
supplement6 to this motion on January 10, 2003. He sought entry of a charging lien in the records
of this case pursuant to Section 37 of Rule 138. He prayed for an order directing the GSIS to
deduct, as his professional fees, 15% from respondents’ refund vouchers since the GSIS was
already in the process of releasing his clients’ checks in compliance with our judgment in the first
petition. The payment scheme was allegedly authorized by the Board of Directors of his clients,
the GSIS Retirees Association, Inc. (GRIA), through a board resolution7 that he has attached to
the motion.
Atty. Sundiam’s motion for charging lien was opposed by petitioner GSIS on the ground that it
was through its efforts, and not Atty. Sundiam’s, that the retirees were able to obtain a
refund.8 Meanwhile, the GRIA confirmed the payment scheme it adopted with Atty. Sundiam and
prayed for its approval.9
Thereafter, on January 10, 2003, respondents filed another manifestation and motion as well as
supplement thereto, claiming that GSIS was deducting new and unspecified sums from the
amount it was refunding to respondents. These new deductions purportedly pertain to another
set of COA disallowances.10
On January 21, 2003, respondents again filed a motion11 praying for the inclusion in the
refundable amount of dividends on the management contribution to the Provident Fund ("motion
for payment of dividends"). Respondents claimed that the contribution, which amounted to Fifty
Million Pesos (P50M), was retained by GSIS for more than five years and thus earned a
considerable sum of income while under its control. GSIS declared and paid dividends on said
contribution to incumbent officials and employees, but refused to extend the same benefits to
respondents/retirees.
On March 6, 2003, GSIS filed a joint comment12 to respondents’ two foregoing motions
contending that the new deductions are legitimate. The deductions pertain to car loan
arrearages, disallowed employees’ compensation claims and the like. As for the dividends on the
Provident Fund contributions, respondents are not entitled to the same because while the first
petition was pending, the contributions were not actually remitted to the fund but were withheld
by COA pursuant to its earlier disallowance.
On October 2, 2003, respondents filed another motion13 for an order to compel the GSIS to pay
dividends on the Provident Fund contributions pending resolution of their other motions. They
also sought refund of Permanent Partial Disability (PPD) benefits that GSIS supposedly paid to
some of the respondents, but once again arbitrarily deducted from the amount which the Court
ordered to be refunded.
In a minute resolution14 dated November 11, 2003, we denied the last motion for lack of merit. We
likewise denied with finality respondents’ motion for reconsideration from the denial of said
motion.15
We now resolve the matters raised by the parties.
On the amendatory motion, it must be clarified that the question raised before this Court in the
second petition was the issue of the Board’s jurisdiction to resolve respondents’ claim for refund
of amounts representing deductions from their retirement benefits. What was assailed in the
second petition was the appellate court’s ruling that the Board had jurisdiction over respondents’
claim since there was no identity of subject matter between the proceedings then pending before
the COA and the petition brought by respondents before the Board. The Court of Appeals did not
rule on the main controversy of whether COA disallowances could be deducted from retirement
benefits because the Board ordered the dismissal of respondents’ claim for alleged lack of
jurisdiction, before it could even decide on the principal issue.
Consequently, the only matter that was properly elevated to this Court was the issue of whether
or not the Board had jurisdiction over respondents’ demands. We did not resolve the issue of
whether or not the deductions were valid under Section 39 of RA 8291, for the simple reason
that the Board, as well as the appellate court, did not tackle the issue. The doctrine of primary
jurisdiction16 would ordinarily preclude us from resolving the matter, which calls for a ruling to be
first made by the Board. It is the latter that is vested by law with exclusive and original jurisdiction
to settle any dispute arising under RA 8291, as well as other matters related thereto.17
However, both the GSIS and respondents have extensively discussed the merits of the case in
their respective pleadings and did not confine their arguments to the issue of jurisdiction.
Respondents, in fact, submit that we should resolve the main issue on the ground that it is a
purely legal question. Respondents further state that a remand of the case to the Board would
merely result in unnecessary delay and needless expense for the parties. They thus urge the
Court to decide the main question in order to finally put an end to the controversy.
Indeed, the principal issue pending before the Board does not involve any factual question, as it
concerns only the correct application of the last paragraph of Section 39, RA 8291. The parties
agreed that the lone issue is whether COA disallowances could be legally deducted from
retirement benefits on the ground that these were respondents’ monetary liabilities to the GSIS
under the said provision. There is no dispute that the amounts deducted by GSIS represented
COA disallowances. Thus, the only question left for the Board to decide is whether the
deductions are allowed under RA 8291.
Under certain exceptional circumstances, we have taken cognizance of questions of law even in
the absence of an initial determination by a lower court or administrative body. In China Banking
Corporation v. Court of Appeals,18 the Court held:
At the outset, the Court’s attention is drawn to the fact that since the filing of this suit
before the trial court, none of the substantial issues have been resolved. To avoid and
gloss over the issues raised by the parties, as what the trial court and respondent Court
of Appeals did, would unduly prolong this litigation involving a rather simple case of
foreclosure of mortgage. Undoubtedly, this will run counter to the avowed purpose of the
rules, i.e., to assist the parties in obtaining just, speedy and inexpensive determination of
every action or proceeding. The Court, therefore, feels that the central issues of the
case, albeit unresolved by the courts below, should now be settled specially as they
involved pure questions of law. Furthermore, the pleadings of the respective parties on
file have amply ventilated their various positions and arguments on the matter
necessitating prompt adjudication.
In Roman Catholic Archbishop of Manila v. Court of Appeals,19 the Court likewise held that the
remand of a case is not necessary where the court is in a position to resolve the dispute based
on the records before it. The Court will decide actions on the merits in order to expedite the
settlement of a controversy and if the ends of justice would not be subserved by a remand of the
case.
Here, the primary issue calls for an application of a specific provision of RA 8291 as well as
relevant jurisprudence on the matter. No useful purpose will indeed be served if we remand the
matter to the Board, only for its decision to be elevated again to the Court of Appeals and
subsequently to this Court. Hence, we deem it sound to rule on the merits of the controversy
rather than to remand the case for further proceedings.
The last paragraph of Section 39, RA 8291 specifically provides:
SEC. 39. Exemption from Tax, Legal Process and Lien.-
xxxxxxxxx
The funds and/or the properties referred to herein as well as the benefits, sums or
monies corresponding to the benefits under this Act shall be exempt from attachment,
garnishment, execution, levy or other processes issued by the courts, quasi-judicial
agencies or administrative bodies including Commission on Audit (COA) disallowances
and from all financial obligations of the members, including his pecuniary accountability
arising from or caused or occasioned by his exercise or performance of his official
functions or duties, or incurred relative to or in connection with his position or work
except when his monetary liability, contractual or otherwise, is in favor of the GSIS.
It is clear from the above provision that COA disallowances cannot be deducted from benefits
under RA 8291, as the same are explicitly made exempt by law from such deductions.
Retirement benefits cannot be diminished by COA disallowances in view of the clear mandate of
the foregoing provision. It is a basic rule in statutory construction that if a statute is clear, plain
and free from ambiguity, it must be given its literal meaning and applied without interpretation.
This is what is known as plain-meaning rule or verba legis.20
Accordingly, the GSIS’ interpretation of Section 39 that COA disallowances have become
monetary liabilities of respondents to the GSIS and therefore fall under the exception stated in
the law is wrong. No interpretation of the said provision is necessary given the clear language of
the statute. A meaning that does not appear nor is intended or reflected in the very language of
the statute cannot be placed therein by construction.21
Moreover, if we are to accept the GSIS’ interpretation, then it would be unnecessary to single out
COA disallowances as among those from which benefits under RA 8291 are exempt. In such a
case, the inclusion of COA disallowances in the enumeration of exemptions would be a mere
surplusage since the GSIS could simply consider COA disallowances as monetary liabilities in its
favor. Such a construction would empower the GSIS to withdraw, at its option, an exemption
expressly granted by law. This could not have been the intention of the statute.
That retirement pay accruing to a public officer may not be withheld and applied to his
indebtedness to the government has been settled in several cases. In Cruz v. Tantuico, Jr.,22 the
Court, citing Hunt v. Hernandez,23 explained the reason for such policy thus:
x x x we are of the opinion that the exemption should be liberally construed in favor of the
pensioner. Pension in this case is a bounty flowing from the graciousness of the
Government intended to reward past services and, at the same time, to provide the
pensioner with the means with which to support himself and his family. Unless otherwise
clearly provided, the pension should inure wholly to the benefit of the pensioner. It is true
that the withholding and application of the amount involved was had under section 624 of
the Administrative Code and not by any judicial process, but if the gratuity could not be
attached or levied upon execution in view of the prohibition of section 3 of Act No. 4051,
the appropriation thereof by administrative action, if allowed, would lead to the same
prohibited result and enable the respondents to do indirectly what they can not do
 directly under section 3 of Act No. 4051. Act No. 4051 is a later statute having been
approved on February 21, 1933, whereas the Administrative Code of 1917 which
embodies section 624 relied upon by the respondents was approved on March 10 of that
year. Considering section 3 of Act No. 4051 as an exception to the general authority
granted in section 624 of the Administrative Code, antagonism between the two
provisions is avoided. (Underscoring supplied)
The above ruling was reiterated in Tantuico, Jr. v. Domingo,24 where the Court similarly declared
that benefits under retirement laws cannot be withheld regardless of the petitioner’s monetary
liability to the government.
The policy of exempting retirement benefits from attachment, levy and execution, as well as
unwarranted deductions, has been embodied in a long line of retirement statutes. Act No.
4051,25 which provides for the payment of gratuity to officers and employees of the Insular
Government upon retirement due to reorganization, expressly provides in its Section 3 that "(t)he
gratuity provided for in this Act shall not be attached or levied upon execution."
The law which established the GSIS, Commonwealth Act No. 186 ("CA No. 186"),26 went further
by providing as follows:
SEC. 23. Exemptions from legal process and liens. – No policy of life insurance issued
under this Act, or the proceeds thereof, except those corresponding to the annual
premium thereon in excess of five hundred pesos per annum, when paid to any member
thereunder, shall be liable to attachment, garnishment, or other process, or to be seized,
taken, appropriated, or applied by any legal or equitable process or operation of law to
pay any debt or liability of such member, or his beneficiary, or any other person who may
have a right thereunder, either before or after payment; nor shall the proceeds thereof,
when not made payable to a named beneficiary, constitute a part of the estate of the
member for payment of his debt.
Presidential Decree No. 1146,27 which amended CA No. 186, likewise contained a provision
exempting benefits from attachment, garnishment, levy or other processes. However, the
exemption was expressly made inapplicable to "obligations of the member to the System, or to
the employer, or when the benefits granted are assigned by the member with the authority of the
System."28
The latest GSIS enactment, RA 8291,29 provides for a more detailed and wider range of
exemptions under Section 39. Aside from exempting benefits from judicial processes, it likewise
unconditionally exempts benefits from quasi-judicial and administrative processes, including
COA disallowances, as well as all financial obligations of the member. The latter includes any
pecuniary accountability of the member which arose out of the exercise or performance of his
official functions or duties or incurred relative to his position or work. The only exception to such
pecuniary accountability is when the same is in favor of the GSIS.
Thus, "monetary liability in favor of GSIS" refers to indebtedness of the member to the System
other than those which fall under the categories of pecuniary accountabilities exempted under
the law. Such liability may include unpaid social insurance premiums and balances on loans
obtained by the retiree from the System, which do not arise in the performance of his duties and
are not incurred relative to his work. The general policy, as reflected in our retirement laws and
jurisprudence, is to exempt benefits from all legal processes or liens, but not from outstanding
obligations of the member to the System. This is to ensure maintenance of the GSIS’ fund
reserves in order to guarantee fulfillment of all its obligations under RA 8291.
Notwithstanding the foregoing, however, we find it necessary to nonetheless differentiate
between those benefits which were properly disallowed by the COA and those which were not.
Anent the benefits which were improperly disallowed, the same rightfully belong to respondents
without qualification. As for benefits which were justifiably disallowed by the COA, the same were
erroneously granted to and received by respondents who now have the obligation to return the
same to the System.
It cannot be denied that respondents were recipients of benefits that were properly disallowed by
the COA. These COA disallowances would otherwise have been deducted from their salaries,
were it not for the fact that respondents retired before such deductions could be effected. The
GSIS can no longer recover these amounts by any administrative means due to the specific
exemption of retirement benefits from COA disallowances. Respondents resultantly retained
benefits to which they were not legally entitled which, in turn, gave rise to an obligation on their
part to return the amounts under the principle of solutio indebiti.
Under Article 2154 of the Civil Code,30 if something is received and unduly delivered through
mistake when there is no right to demand it, the obligation to return the thing arises. Payment by
reason of mistake in the construction or application of a doubtful or difficult question of law also
comes within the scope of solutio indebiti.31
In the instant case, the confusion about the increase and payment of benefits to GSIS
employees and executives, as well as its subsequent disallowance by the COA, arose on
account of the application of RA 6758 or the Salary Standardization Law and its implementing
rules, CCC No. 10. The complexity in the application of these laws is manifested by the several
cases that have reached the Court since its passage in 1989.32 The application of RA 6758 was
made even more difficult when its implementing rules were nullified for non-
publication.33 Consequently, the delivery of benefits to respondents under an erroneous
interpretation of RA 6758 gave rise to an actionable obligation for them to return the same.
While the GSIS cannot directly proceed against respondents’ retirement benefits, it can
nonetheless seek restoration of the amounts by means of a proper court action for its recovery.
Respondents themselves submit that this should be the case,34 although any judgment rendered
therein cannot be enforced against retirement benefits due to the exemption provided in Section
39 of RA 8291. However, there is no prohibition against enforcing a final monetary judgment
against respondents’ other assets and properties. This is only fair and consistent with basic
principles of due process.
As such, a proper accounting of the amounts due and refundable is in order. In rendering such
accounting, the parties must observe the following guidelines:
(1) All deductions from respondents’ retirement benefits should be refunded except those
amounts which may properly be defined as "monetary liability to the GSIS";
(2) Any other amount to be deducted from retirement benefits must be agreed upon by
and between the parties; and
(3) Refusal on the part of respondents to return disallowed benefits shall give rise to a
right of action in favor of GSIS before the courts of law.
Conformably, any fees due to Atty. Sundiam for his professional services may be charged
against respondents’ retirement benefits. The arrangement, however, must be covered by a
proper agreement between him and his clients under (2) above.
As to whether respondents are entitled to dividends on the provident fund contributions, the
same is not within the issues raised before the Court. The second petition refers only to the
legality of the deductions made by GSIS from respondents’ retirement benefits. There are factual
matters that need to be threshed out in determining respondents’ right to the payment of
dividends, in view of the GSIS’ assertion that the management contributions were not actually
remitted to the fund. Thus, the payment of dividends should be the subject of a separate claim
where the parties can present evidence to prove their respective assertions. The Court is in no
position to resolve the matter since the material facts that would prove or disprove the claim are
not on record.
In the interest of clarity, we reiterate herein our ruling that there is no identity of subject matter
between the COA proceedings, from which the first petition stemmed, and respondents’ claim of
refund before the Board. While the first petition referred to the propriety of the COA
disallowances per se, respondents’ claim before the Board pertained to the legality of deducting
the COA disallowances from retirement benefits under Section 39 of RA 8291.
Finally, on respondents claim that the GSIS acted in bad faith when it deducted the COA
disallowances from their retirement benefits, except for bare allegations, there is no proof or
evidence of the alleged bad faith and partiality of the GSIS. Moreover, the latter cannot be
faulted for taking measures to ensure recovery of the COA disallowances since respondents
have already retired and would be beyond its administrative reach. The GSIS merely acted upon
its best judgment and chose to err in the side of prudence rather than suffer the consequence of
not being able to account for the COA disallowances. It concededly erred in taking this recourse
but it can hardly be accused of malice or bad faith in doing so.
WHEREFORE, in view of the foregoing, the April 16, 2002 Decision in G.R. Nos. 138381 and
141625 is AMENDED. In addition to the refund of amounts corresponding to benefits allowed in
G.R. No. 138381, the GSIS is ordered to REFUND all deductions from retirement benefits
EXCEPT amounts representing monetary liability of the respondents to the GSIS as well as all
other amounts mutually agreed upon by the parties.
SO ORDERED.
CRIMINAL LIABILITY
G.R. No. 128055 April 18, 2001
MIRIAM DEFENSOR SANTIAGO, petitioner,
vs.
SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE S. BALAJADIA AND MINITA V.
CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE FIRST
DIVISION, respondents.
VITUG, J.:
The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in
ordering the preventive suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in
connection with pending in criminal cases filed against her for alleged violation of Republic Act
No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.
The instant case arose from complaints filed by a group of employees of the Commission of
Immigration and Deportation (CID) against petitioner, then CID Commissioner, for alleged
violation of the Anti-Graft and Corrupt Practices Act. The investigating panel, that took over the
case from investigator Gualberto dela Llana after having been constituted by the Deputy
Ombudsman for Luzon upon petitioner's request, came up with a resolution which it referred, for
approval, to the Office of the Special Prosecutor (OSP) and the Ombudsman. In his
Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to file the appropriate
informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the
informations for clearance; approved, forthwith, three informations were filed on even date.
In Criminal Case No. 16698 filed before the Sandiganbayan, petitioner was indicted thusly:
"That on or about October 17, 1988, or sometime prior or subsequent thereto, in Manila,
Philippines and within the jurisdiction of this Honorable Court, accused MIRIAM
DEFENSOR-SANTIAGO, a public officer, being then the Commissioner of the
Commission on Immigration and Deportation, with evident bad faith and manifest
partiality in the exercise of her official functions, did then and there willfully, unlawfully
and criminally approve the application for legalization for the stay of the following aliens:
Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein Uy, Cu
Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li Xuan, Qui Ming Xia Ong, Wu Sui
Xin Qiui, Wu Hong Guan Qui @ Betty Go, Wu Hong Ru Qui @ Mary Go Xu @ Yin Yin
Kua, Hong Shao Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong,
Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu Jin, Cai Pian Pian, Cai Wen
Xu, Cai Min Min, Cai Ping Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @
Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya
Rong, who arrived in the Philippines after January 1, 1984 in violation of Executive Order
No. 324 dated April 13, 1988 which prohibits the legalization of said disqualified aliens
knowing fully well that said aliens are disqualified thereby giving unwarranted benefits to
said aliens whose stay in the Philippines was unlawfully legalized by said accused." 1
Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and
the other for libel, were filed with the Regional Trial Court of Manila, docketed, respectively, No.
91-94555 and No. 91-94897.
Pursuant to the information filed with the Sandiganbayan, Presiding Justice Francis E.
Garchitorena issued an order for the arrest of petitioner, fixing the bail at Fifteen Thousand
(P15,000.00) Pesos. Petitioner posted a cash bail without need for physical appearance as she
was then recuperating from injuries sustained in a vehicular accident. The Sandiganbayan
granted her provisional liberty until 05 June 1991 or until her physical condition would warrant
her physical appearance in court. Upon manifestation by the Ombudsman, however, that
petitioner was able to come unaided to his office on 20 May 1991, Sandiganbayan issued an
order setting the arraignment on 27 May 1991.
Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be
allowed provisional liberty upon a recognizance.
On 24 May 1991, petitioner filed, concurrently, a Petition for Certiorari with prohibition and
Preliminary Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the
Sandiganbayan from proceeding with Criminal Case No. 16698 and a motion before the
Sandiganbayan to meanwhile defer her arraignment. The Court taking cognizance of the petition
issued a temporary restraining order.
The Sandiganbayan, thus informed, issued an order deferring petitioner's arraignment and the
consideration of her motion to cancel the cash bond until further advice from the Court.
On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the
temporary restraining order. The subsequent motion for reconsideration filed by petitioner proved
unavailing.
On 06 July 1992, in the wake of media reports announcing petitioner's intention to accept a
fellowship from the John F. Kennedy School of Government at Harvard University, the
Sandiganbayan issued an order to enjoin petitioner from leaving the country.
On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice Garchitorena
from the case and to defer her arraignment pending action on her motion to inhibit. On 09
November 1992, her motion was denied by the Sandiganbayan. The following day, she filed
anew a Petition for Certiorari and Prohibition with urgent Prayer for Preliminary Injunction with
the Court, docketed G.R. No. 99289-90. At the same time, petitioner filed a motion for bill of
particulars with the Sandiganbayan asseverating that the names of the aliens whose applications
she purportedly approved and thereby supposedly extended undue advantage were
conspicuously omitted in the complaint.
The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset
petitioner's arraignment not later than five days from receipt of notice thereof.
On 07 December 1992, the OSP and the Ombudsman filed with the Sandiganbayan a motion to
admit thirty-two amended informations. Petitioner moved for the dismissal of the 32 informations.
The court, in its 11th March 1993 resolution, denied her motion to dismiss the said informations
and directed her to post bail on the criminal cases, docketed Criminal Case No. 18371-18402,
filed against her.
Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed G.R.
No. 109266, assailing the 03rd March 1993 resolution of the Sandiganbayan which resolved not
to disqualify its Presiding Justice, as well as its 14th March 1993 resolution admitting the 32
Amended Informations, and seeking the nullification thereof.
Initially, the Court issued a temporary restraining order directing Presiding Justice Garchitorena
to cease and desist from sitting in the case, as well as from enforcing the 11th March 1993
resolution ordering petitioner to post bail bonds for the 32 amended informations, and from
proceedings with her arraignment on 12 April 1993 until the matter of his disqualification would
have been resolved by the Court.
On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and
Ombudsman to consolidate the 32 amended informations. Conformably therewith, all the 32
informations were consolidated into one information under Criminal Case No. 16698.
Petitioner, then filed with the Sandiganbayan a Motion to "Redetermine Probable Cause" and to
dismiss or quash said information. Pending the resolution of this incident, the prosecution filed
on 31 July 1995 with the Sandiganbayan a motion to issue an order suspending petitioner.
On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo
Pedellaga (Pedellaga). The presentation was scheduled on 15 September 1995.
In the interim, the Sandiganbayan directed petitioner to file her opposition to the 31st July 1995
motion of the prosecution within fifteen (15) days from receipt thereof.
On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of
its 03rd August 1995 order which would allow the testimony of Pedellaga. The incident, later
denied by the Sandiganbayan, was elevated to the Court via a Petition for Review on Certiorari,
entitled "Miriam Defensor-Santiago vs. Sandiganbayan," docketed G.R. No. 123792.
On 22 August 1995, petitioner filed her opposition to the motion of the prosecution to suspend
her. On 25 January 1996, the Sandiganbayan resolved:
"WHEREFORE, for all the foregoing, the Court hereby grants the motion under
consideration and hereby suspends the accused Miriam Defensor-Santiago from her
position as Senator of the Republic of the Philippines and from any other government
position she may be holding at present or hereafter. Her suspension shall be for ninety
(90) days only and shall take effect immediately upon notice.
"Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate
President, Senate of the Philippines, Executive House, Taft Ave., Manila, through the
Hon. Secretary of the Senate, for the implementation of the suspension herein ordered.
The Secretary of the Senate shall inform this Court of the action taken thereon within five
(5) days from receipt hereof.
"The said official shall likewise inform this Court of the actual date of implementation of
the suspension order as well as the expiry of the ninetieth day thereof so that the same
may be lifted at that time." 2
Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a
ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic
of the Philippines, from any government position, and furnishing a copy thereof to the Senate of
the Philippines for the implementation of the suspension order.
The authority of the Sandiganbayan to order the preventive suspension of an incumbent public
official charged with violation of the provisions of Republic Act No. 3019 has both legal and
jurisprudential support. Section 13 of the statute provides:
"SECTION 13. Suspension and loss of benefits. — Any incumbent public officer against
whom any criminal prosecution under a valid information under this Act or under Title 7,
Book II of the Revised Penal Code or for any offense involving fraud upon government or
public funds or property whether as a simple or as a complex offense and in whatever
stage of execution and mode of participation, is pending in court, shall be suspended
from office. Should he be convicted by final judgment, he shall lose all retirement or
gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement
and to the salaries and benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against him.
"In the event that such convicted officer, who may have already been separated from the
service, has already received such benefits he shall be liable to restitute the same to the
Government. (As amended by BP Blg. 195, March 16, 1982)."
In the relatively recent case of Segovia vs. Sandiganbayan, 3 the Court reiterated:
"The validity of Section 13, R.A. 3019, as amended — treating of the
suspension pendente lite of an accused public officer — may no longer be put at issue,
having been repeatedly upheld by this Court.
"xxx xxx xxx
"The provision of suspension pendente lite applies to all persons indicted upon a valid
information under the Act, whether they be appointive or elective officials; or permanent
or temporary employees, or pertaining to the career or non-career service." 4
It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension
upon determination of the validity of the information filed before it. Once the information is found
to be sufficient in form and substance, the court is bound to issue an order of suspension as a
matter of course, and there seems to be "no ifs and buts about it." 5 Explaining the nature of the
preventive suspension, the Court in the case of Bayot vs. Sandiganbayan 6 observed:
"x x x . It is not a penalty because it is not imposed as a result of judicial proceedings. In
fact, if acquitted, the official concerned shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during suspension." 7
In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the
clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court has,
more than once, upheld Sandiganbayan's authority to decree the suspension of public officials
and employees indicted before it.
Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has
been charged. Thus, it has been held that the use of the word "office" would indicate that it
applies to any office which the officer charged may be holding, and not only the particular office
under which he stands accused. 8
En passant, while the imposition of suspension is not automatic or self-operative as the validity
of the information must be determined in a pre-suspension hearing, there is no hard and fast rule
as to the conduct thereof. It has been said that —
"'x x x . No specific rules need be laid down for such pre-suspension hearing. Suffice it to
state that the accused should be given a fair and adequate opportunity to challenge the
VALIDITY OF THE CRIMINAL PROCEEDINGS against him e.g. that he has not been
afforded the right of due preliminary investigation; that the acts for which he stands
charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery
provisions of the Revised Penal Code which would warrant his mandatory suspension
from office under section 13 of the Act; or he may present a motion to quash the
information on any of the grounds provided for in Rule 117 of the Rules of Court x x x .'
"xxx xxx xxx
"Likewise, he is accorded the right to challenge the propriety of his prosecution on the
ground that the acts for which he is charged do not constitute a violation of Rep. Act
3019, or of the provisions on bribery of the Revised Penal Code, and the right to present
a motion to quash the information on any other grounds provided in Rule 117 of the
Rules of court.
"However, a challenge to the validity of the criminal proceedings on the ground that the
acts for which the accused is charged do not constitute a violation of the provisions of
Rep. Act 3019, or of the provisions on bribery of the revised Penal Code, should be
treated only in the same manner as a challenge to the criminal proceeding by way of a
motion to quash on the ground provided in Paragraph (a), Section 2 of Rule 117 of the
Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a
resolution of the challenge to the validity of the criminal proceeding, on such ground,
should be limited to an inquiry whether the facts alleged in the information, if
hypothetically admitted, constitute the elements of an offense punishable under Rep. Act
3019 or the provisions on bribery of the Revised Penal Code." 9
The law does not require that the guilt of the accused must be established in a presuspension
proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to
determine (1) the strength of the evidence of culpability against him, (2) the gravity of the offense
charged, or (3) whether or not his continuance in office could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence before the court could have a
valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the
accused is adequate opportunity to challenge the validity or regularity of the proceedings against
him, such as, that he has not been afforded the right to due preliminary investigation, that the
acts imputed to him do not constitute a specific crime warranting his mandatory suspension from
office under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on
any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure. 10
The instant petition is not the first time that an incident relating to petitioner's case before the
Sandiganbayan has been brought to this Court. In previous occasions, the Court has been called
upon to resolve several other matters on the subject. Thus: (1) In Santiago vs.
Vasquez, 11 petitioner sought to enjoin the Sandiganbayan from proceeding with Criminal Case
No. 16698 for violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez, 12 petitioner sought
the nullification of the hold departure order issued by the Sandiganbayan via a "Motion to
Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for Issuance of
a Temporary Restraining Order and/or Preliminary Injunction, with Motion to set Pending Incident
for Hearing; (3) in Santiago vs. Garchitorena, 13 petitioner sought the nullification of the resolution,
dated 03 March 1993, in Criminal Case No. 16698 of the Sandiganbayan (First Division) and to
declare Presiding Justice Garchitorena disqualified from acting in said criminal case, and the
resolution, dated 14 March 1993, which deemed as "filed" the 32 amended informations against
her; and (4) in Miriam Defensor Santiago vs. Sandiganbayan, 14 petitioner assailed the denial by
the Sandiganbayan of her motion for reconsideration from its 03rd August 1995 order allowing
the testimony of Pedellaga. In one of these cases, 15 the Court declared:
"We note that petitioner had previously filed two petitions before us involving Criminal
Case No. 16698 (G.R. Nos. 99289-99290; G.R. No. 107598). Petitioner has not
explained why she failed to raise the issue of the delay in the preliminary investigation
and the filing of the information against her in those petitions. A piece-meal presentation
of issues, like the splitting of causes of action, is self-defeating.
"Petitioner next claims that the Amended informations did not charge any offense
punishable under Section 3 (e) of RA. No. 3019 because the official acts complained
therein were authorized under Executive Order No. 324 and that the Board of
Commissioners of the Bureau of Investigation adopted the policy of approving
applications for legalization of spouses and unmarried, minor children of "qualified aliens"
even though they had arrived in the Philippines after December 31, 1983. She concludes
that the Sandiganbayan erred in not granting her motion to quash the informations
(Rollo, pp. 25-31).
"In a motion to quash, the accused the accused admits hypothetically the allegations of
fact in the information (People vs. Supnad, 7 SCRA 603 [1963]). Therefore, petitioner
admitted hypothetically in her motion that:
 (1) She was a public officer,
(2) She approved the application for legalization of the stay of aliens, who arrived
in the Philippines after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in 'evident bad faith and manifest partiality in the execution of her
official functions.'
"The foregoing allegations of fact constitute the elements of the offense defined in
Section 3 (e) of R.A. No. 3019." 16
The pronouncement, upholding the validity of the information filed against petitioner, behooved
Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive
suspension.
The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of
Congress to discipline its own ranks under the Constitution which provides that each —
"x x x . house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend
or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty
days." 17
The suspension contemplated in the above constitutional provision is a punitive measure that is
imposed upon determination by the Senate or the House of Representatives, as the case may
be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. vs.
Sandiganbayan, et al., 18 the Court affirmed the order of suspension of Congressman Paredes by
the Sandiganbayan, despite his protestations on the encroachment by the court on the
prerogatives of Congress. The Court ruled:
"x x x . Petitioner's invocation of Section 16 (3), Article VI of the Constitution — which
deals with the power of each House of Congress inter alia to 'punish its Members for
disorderly behavior,' and 'suspend or expel a Member' by a vote of two-thirds of all its
Members subject to the qualification that the penalty of suspension, when imposed,
should not exceed sixty days — is unavailing, as it appears to be quite distinct from the
suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary,
preventive measure, prescinding from the fact that the latter is not being imposed on
petitioner for misbehavior as a Member of the House of Representatives."
The doctrine of separation of powers by itself may not be deemed to have effectively excluded
members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply
recognizes each of the three co-equal and independent, albeit coordinate, branches of the
government — the Legislative, the Executive and the Judiciary — has exclusive prerogatives
and cognizance within its own sphere of influence and effectively prevents one branch from
unduly intruding into the internal affairs of either branch.
Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution,
empowers the Court to act not only in the settlement of "actual controversies involving rights
which are legally demandable and enforceable," but also in the determination of "whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. The provision allowing the Court to look into
any possible grave abuse of discretion committed by any government instrumentality has
evidently been couched in general terms in order to make it malleable to judicial interpretation in
the light of any emerging milieu. In its normal concept, the term has been said to imply an
arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of
jurisdiction. When the question, however, pertains to an affair internal to either of Congress or
the Executive, the Court subscribes to the view 19 that unless an infringement of any specific
Constitutional proscription thereby inheres the Court should not deign substitute its own
judgment over that of any of the other two branches of government. It is an impairment or a clear
disregard of a specific constitutional precept or provision that can unbolt the steel door for
Judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to
contemporary needs, it is the people, not the Court, who must promptly react in the manner
prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its coverage the members of Congress and that,
therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension
order.
Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First
Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court,
nevertheless, deems it appropriate to render this decision for future guidance on the significant
issue raised by petitioner.
WHEREFORE, the instant petition for certiorari is DISMISSED. No costs.
SO ORDERED.
EXPIRATION OF TERM
G.R. No. 93023 March 13, 1991
TOMAS D. ACHACOSO, petitioner
vs.
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary
and Secretary of the Department of Labor and Employment (DOLE), respectively; and
JOSE N. SARMIENTO, respondents.
Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.
CRUZ, J.:
The petitioner invokes security of tenure against his claimed removal without legal cause. The
respondents assert he is not entitled to the guaranty because he is not a career official. These
are the legal issues. The facts are as follows:
Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment
Administration on October 16, 1987, and assumed office on October 27, 1987. On January 2,
1990, in compliance with a request addressed by the President of the Philippines to "all
Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other
government officials, he filed a courtesy resignation. This was accepted by the President on April
3, 1990, "with deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn
over his office to the Deputy Administrator as officer in-charge. In a letter dated April 19, 1990,
he protested his replacement and declared he was not surrendering his office because his
resignation was not voluntary but filed only in obedience to the President's directive. On the
same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the
petitioner. Achacoso was informed thereof the following day and was again asked to vacate his
office. He filed a motion for reconsideration on April 23, 1990, but this was denied on April 30,
1990. He then came to this Court for relief.
In this petition for prohibition and mandamus, this Court is asked to annul the appointment of
Sarmiento and to prohibit the respondents from preventing the petitioner from discharging his
duties as Administrator of the POEA.
Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys
security of tenure, which is one of the characteristics of the Career Service as distinguished from
the Non-Career Service.1 Claiming to have the rank of undersecretary, he says he comes under
Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which includes in
the Career Service:
3. Positions in the Career Executive Service; namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent rank as
may be identified by the Career Executive Service Board, all of whom are appointed by
the President.
His argument is that in view of the security of tenure enjoyed by the above-named officials, it was
"beyond the prerogatives of the President" to require them to submit courtesy resignations. Such
courtesy resignations, even if filed, should be disregarded for having been submitted "under
duress," as otherwise the President would have the power to remove career officials at pleasure,
even for capricious reasons. In support of this contention, he invokes Ortiz vs. Commission on
Elections,2 where we observed that "to constitute a complete and operative act of resignation, the
officer or employee must show a clear intention to relinquish" and that "a courtesy resignation
cannot properly be interpreted as a resignation in the legal sense for it is not necessarily a
reflection of a public official's intention to surrender his position." He concludes that as his
removal was illegal, there was no vacancy in the disputed office to which respondent Sarmiento
could have been validly appointed.
In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career
executive service position but submits that the petitioner himself is not a career executive service
official entitled to security of tenure. He offers the following certification from the Civil Service
Commission to show that the petitioner did not possess the necessary qualifications when he
was appointed Administrator of the POEA in 1987:
CERTIFICATION
This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D.
Achacoso III has not participated in a Career Executive Service Development Program (CESDP)
and is not a CES eligible. This is to certify further that Mr. Achacoso was not appointed to a rank
in the CES and is not therefore a member of the Career Executive Service.
xxx xxx xxx
(Sgd.) ELMOR D. JURIDICO
Executive Director
Reference is also made to the following rules embodied in Part III, Article IV, Integrated
Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the
career executive service:
c. Appointment. Appointment to appropriate classes in the Career Service shall be made
by the President from a list of career executive eligibles recommended by the Board.
Such appointments shall be made on the basis of rank; provided that appointments to
the higher ranks which qualify the incumbents to assignments as undersecretary and
heads of the bureaus and offices and equivalent positions shall be with the confirmation
of the Commission on Appointments. The President may, however, in exceptional cases,
appoint any person who is not a Career Executive Service eligible, provided that such
appointee shall subsequently take the required Career Executive Service examination
and that he shall not be promoted to a higher class until he qualifies in such examination.
(Emphasis supplied.)
The respondents contend that as the petitioner was not a career executive service eligible at the
time of his appointment, he came under the exception to the above rule and so was subject to
the provision that he "shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher rank until he qualifies in such
examination." Not having taken that examination, he could not claim that his appointment was
permanent and guaranteed him security of tenure in his position.
It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a
moment's notice," conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties in
the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his eligibility
or lack of it. A person who does not have the requisite qualifications for the position cannot be
appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely
in an acting capacity in the absence of appropriate eligibles.3
The appointment extended to him cannot be regarded as permanent even if it may be so
designated.
The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of
official functions by authorizing a person to discharge the same pending the selection of a
permanent or another appointee.4 The person named in an acting capacity accepts the position
under the condition that he shall surrender the office once he is called upon to do so by the
appointing authority.
In these circumstances, the acting appointee is separated by a method of terminating official
relations known in the law of public officers as expiration of the term. His term is understood at
the outset as without any fixity and enduring at the pleasure of the appointing authority. When
required to relinquish his office, he cannot complain that he is being removed in violation of his
security of tenure because removal imports the separation of the incumbent before the expiration
of his term.5 This is allowed by the Constitution only when it is for cause as provided by law. The
acting appointee is separated precisely because his term has expired. Expiration of the term is
not covered by the constitutional provision on security of tenure.
There is a long line of cases affirming the rule that:
. . . One who holds a temporary appointment has no fixed tenure of office; his
employment can be terminated at the pleasure of the appointing power, there being no
need the show that the termination is for cause.6
The petitioner contends that his appointment was really intended to be permanent because
temporary appointments are not supposed to exceed twelve months and he was allowed to
serve in his position for more than three years. This is unacceptable. Even if that intention were
assumed, it would not by itself alone make his appointment permanent. Such an appointment did
not confer on the petitioner the appropriate civil service eligibility he did not possess at the time
he was appointed, nor did it vest him with the right to security of tenure that is available only to
permanent appointees.
The case of Luego vs. Civil Service Commission7 is not applicable because the facts of that case
are different. The petitioner in Luego was qualified and was extended a permanent appointment
that could not be withdrawn on the ground that it was merely temporary. In the case at bar, the
petitioner was not eligible and therefore could be appointed at best only in a temporary capacity.
The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate
Court,8 Palma-Fernandez vs. De la Paz,9 and Dario vs. Mison,10 are also not pertinent because
they also involved permanent appointees who could not be removed because of their security of
tenure.
It should be obvious from all the above observations that the petitioner could have been validly
replaced even if he had not filed his courtesy resignation. We therefore do not have to rule on its
legality. Suffice it to say that it could have been a graceful way of withdrawing him from his office
with all the formal amenities and no asperity or discord if only he had not chosen to contest it.
But it was his right to do so, of course, although his challenge has not succeeded.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

RESIGNATION
G.R. No. 149356 March 14, 2008
REPUBLIC OF THE PHILIPPINES represented by the Department of Trade and
Industry, Petitioner,
vs.
WINSTON T. SINGUN, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari1 of the 1 August 2001 Decision2 of the Court of Appeals
in CA-G.R. SP No. 64953. The 1 August 2001 Decision affirmed Civil Service Commission
(CSC) Resolution Nos. 0026513 and 0108434 dated 27 November 2000 and 27 April 2001,
respectively. CSC Resolution No. 002651 held that respondent Winston T. Singun’s
(respondent) resignation was inoperative and inefficacious and ordered the payment of his
salaries and other benefits from 1 January 2000. CSC Resolution No. 010843 denied petitioner’s
motion for reconsideration.
The Facts
Petitioner Republic of the Philippines (petitioner) is represented by the Department of Trade and
Industry, Regional Office No. 2 (DTI-RO2). Respondent was the former Chief Trade and Industry
Development Specialist of DTI-RO2, Cagayan Province.
In a letter5 dated 20 October 1999, respondent wrote Regional Director Jose Hipolito (Director
Hipolito) signifying his intention to apply for an 8½ month leave of absence starting 16 November
1999 until 31 July 2000. Respondent also signified his intention to retire from the service on 1
August 2000. On 4 November 1999, respondent filed his application for leave of absence and
early retirement.6 Director Hipolito denied the request.
On 8 November 1999, respondent again filed an application for leave of absence and
resignation.7 In a memorandum dated 9 November 1999, Director Hipolito endorsed the
application to Assistant Secretary Zenaida C. Maglaya (Assistant Secretary Maglaya) for
comment.8
On 12 November 1999, without waiting for Assistant Secretary Maglaya’s comment, respondent
again filed an application for leave of absence but for a shorter period from 16 November 1999
until 14 January 2000.9 Respondent also signified his intention to resign "effective at the close of
office hours on 14 January 2000." According to Director Hipolito, he immediately approved
respondent’s application for leave of absence and resignation and he reiterated said approval in
a memorandum10 dated the same day. In a letter11 dated 23 November 1999, Director Hipolito
also notified Regional Director Jose T. Soria (Atty. Soria) of the Civil Service Commission,
Regional Office No. 2 (CSC-RO2) of his acceptance of respondent’s resignation.
Then on 14 January 2000, at about 4:00 p.m., the DTI-RO2 received, through facsimile,
Memorandum Order No. 2012 issued by Undersecretary Ernesto M. Ordoñez (Undersecretary
Ordoñez) detailing respondent to the Office of the Undersecretary for Regional Operations
effective 17 January 2000.
On 17 January 2000, the DTI-RO2 received respondent’s 14 January 2000 letter13 informing
Director Hipolito that he was reconsidering his earlier letter of resignation and that he decided to
wait until he could qualify for early retirement.
On 25 January 2000, Director Hipolito wrote Atty. Soria requesting an opinion on whether
respondent was considered resigned as of 12 November 1999 and, hence, Undersecretary
Ordoñez’s detail order was without effect.
In CSC-RO2 Opinion No. LO-00020214 dated 2 February 2000, Atty. Soria ruled that respondent
was considered resigned effective 14 January 2000. CSC-RO2 opined that respondent
effectively resigned on that date because (1) of respondent’s voluntary written notice informing
Director Hipolito that he was relinquishing his position and the effectivity date of said resignation
and (2) Director Hipolito’s acceptance of respondent’s resignation in writing which indicated the
date of effectivity of the resignation. CSC-RO2 also said that respondent’s letter withdrawing his
resignation did not automatically restore him to his position because Director Hipolito should first
approve the withdrawal before it becomes effective.
In a letter15 dated 11 February 2000, Director Hipolito informed Undersecretary Ordoñez that
respondent had resigned effective 14 January 2000 and, thus, the detail order was without
effect. Director Hipolito added that during respondent’s leave of absence, respondent accepted
employment with the Philippine Rural Banking Corporation (PRBC).
In a letter16 dated 23 February 2000, respondent informed Undersecretary Ordoñez that his
application for resignation was made under duress because it was imposed by Director Hipolito
as a condition for the approval of his application for leave of absence. Respondent explained
that he did not intend to resign on 14 January 2000 as his original intention was to resign on 1
August 2000 after completing 15 years of service in the government. Respondent also stated
that his resignation was ineffective because he was not notified of its acceptance for he did not
receive a copy of his approved resignation letter and Director Hipolito’s memorandum accepting
his application for resignation. Respondent added that even assuming he was duly notified of its
acceptance, his resignation was still made under duress and, therefore, no amount of
acceptance would make it valid.
On 2 March 2000, Undersecretary Ordoñez required Director Hipolito to comment on
respondent’s 23 February 2000 letter. Undersecretary Ordoñez asked Director Hipolito to submit
documentary evidence to show that respondent received a copy of Director Hipolito’s formal
acceptance in writing of respondent’s letter of resignation and that respondent was employed by
PRBC during his leave of absence.
On 28 March 2000, respondent demanded from Director Hipolito the payment of his salaries and
other benefits from 1 December 1999 to 31 March 2000.
On 5 April 2000, Undersecretary Ordoñez ordered Director Hipolito to advise him as to
respondent’s request for the payment of his unpaid salaries. Undersecretary Ordoñez also asked
Director Hipolito to support his claim that respondent was considered resigned effective 14
January 2000 with a ruling from the CSC.
In a letter17 dated 18 April 2000, Atty. Soria asked Director Hipolito to comment on respondent’s
14 April 2000 letter18 requesting for the reconsideration of CSC-RO2 Opinion No. LO-000202. In
his comment,19 Director Hipolito denied that he "forced, intimidated, threatened, and unduly
pressured" respondent to resign. Director Hipolito also insisted that respondent received a copy
of the 12 November 1999 memorandum regarding the acceptance of his resignation.
On 5 June 2000, the CSC-RO2 rendered Decision No. A-00060120 denying respondent’s motion
for reconsideration. CSC-RO2 ruled that respondent was considered resigned as of 14 January
2000 because the detail order made no mention that its issuance meant that the acceptance of
the resignation was revoked. CSC-RO2 added that since Undersecretary Ordoñez was not the
appointing authority, he had no power to accept respondent’s withdrawal of his resignation.
Respondent appealed to the CSC.
The Ruling of the Civil Service Commission
On 27 November 2000, the CSC rendered Resolution No. 002651 declaring respondent’s
resignation inoperative and inefficacious. The CSC also ordered the payment of respondent’s
salaries and other benefits from 1 January 2000. The CSC ruled:
There is no dispute that Singun tendered his resignation to Regional Director Hipolito to take
effect on January 14, 2000. But it is likewise undisputed that on the very day that his cessation
from office is to take effect, DTI Undersecretary Ordoñez ordered his detail to his Office. This act
of Undersecretary Ordoñez, who is the immediate supervisor of Regional Director Hipolito, is a
tacit, if not express, repudiation and revocation of the ostensible acceptance by the latter of the
supposed resignation of Singun. This, in effect, can be construed as if no acceptance was ever
made on the tender of resignation of Singun.
Finally, even on the assumption that Singun’s tender of resignation was indeed accepted, such
acceptance is inoperative and inefficacious. This is so simply because there is no showing from
the records that Singun was duly informed of said acceptance. In fact, there is no mention
whatsoever that Singun was informed of the acceptance of his resignation. This being the case,
it cannot be concluded that Singun had, either impliedly or expressly, surrendered, renounced,
or relinquished his office. In explaining this precept, the Commission in CSC Resolution No. 00-
2394 dated October 18, 2000, held:
‘It is explicit that resignation, as a mode of terminating the employee’s official relations, is pre-
conditioned on the (i) written notice of the concerned employee to sever his employment tie
coupled with an act of relinquishing the office; and, (ii) acceptance by the appointing authority for
which the employee shall have been properly notified...’21
On 15 December 2000, petitioner filed a motion for reconsideration. Two supplemental motions
for reconsideration were subsequently filed on 12 January 200122 and 11 April 2001.23 In
Resolution No. 010843,24 the CSC denied petitioner’s motion for reconsideration.
Petitioner appealed to the Court of Appeals.25
The Ruling of the Court of Appeals
On 1 August 2001, the Court of Appeals denied petitioner’s appeal and affirmed CSC Resolution
Nos. 002651 and 010843. The Court of Appeals declared that there was substantial evidence to
support the CSC’s finding that respondent’s resignation was inoperative and inefficacious. The
Court of Appeals stated that findings of fact of an administrative agency must be respected, as
long as such findings are supported by substantial evidence, even if such evidence might not be
overwhelming or preponderant. The Court of Appeals said "the fact of resignation cannot be
presumed by the petitioner’s simple expedient of relying on memoranda or letters merely
showing the purported approval of resignation which bore his signature, because to constitute a
complete and operative act of resignation, the officer or employee must show a clear intention to
relinquish or surrender his position."26
The Court of Appeals also ruled that respondent’s alleged act of accepting employment with
PRBC did not amount to abandonment of office. The Court of Appeals held that abandonment is
inconsistent with respondent’s (1) motion for reconsideration of CSC-RO2’s Opinion No. LO-
000202, (2) appeal questioning CSC-RO2’s Decision No. A-000601, and (3) bringing the matter
to the National Office of the CSC for resolution.
The Court of Appeals also declared that petitioner was not denied due process because the
essence of due process in administrative proceedings is an opportunity to explain one’s side or
an opportunity to seek reconsideration of the action or ruling complained of. In this case,
petitioner was able to file a motion for reconsideration and two supplemental motions for
reconsideration.
Hence, this petition for review with prayer for a temporary restraining order.
On 8 October 2001, the Court issued a temporary restraining order enjoining the CSC from
enforcing the 1 August 2001 Decision of the Court of Appeals and respondent from assuming
office at the DTI-RO2, Cagayan Province.27
The Issues
Petitioner raises the following issues:
1. Whether respondent validly resigned from DTI-RO2 effective 14 January 2000; and
2. Whether the detail order issued by Undersecretary Ordoñez effectively withdrew
respondent’s resignation.
The Court’s Ruling
The petition has no merit.
The Final Act of a Resignation’s Acceptance
is the Notice of Acceptance
Resignation implies an expression of the incumbent in some form, express or implied, of the
intention to surrender, renounce, and relinquish the office and the acceptance by competent and
lawful authority.28 To constitute a complete and operative resignation from public office, there
must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an
acceptance by the proper authority.29
Petitioner maintains that respondent’s resignation was complete because all the elements of a
complete and operative resignation were present. On the other hand, respondent claims that his
resignation was not complete because there was no valid acceptance of his offer to resign since
he was not duly informed of its acceptance.
In our jurisdiction, acceptance is necessary for resignation of a public officer to be operative and
effective. Without acceptance, resignation is nothing and the officer remains in
office.30 Resignation to be effective must be accepted by competent authority, either in terms or
by something tantamount to an acceptance, such as the appointment of the successor.31 A
public officer cannot abandon his office before his resignation is accepted, otherwise the officer
is subject to the penal provisions of Article 23832 of the Revised Penal Code.33 The final or
conclusive act of a resignation’s acceptance is the notice of acceptance.34 The incumbent official
would not be in a position to determine the acceptance of his resignation unless he had been
duly notified therefor.35
In this case, the Court of Appeals and the CSC declared that there was nothing in the records to
show that respondent was duly informed of the acceptance of his resignation. There was no
indication that respondent received a copy of his 12 November 1999 application for leave of
absence and resignation as accepted by Director Hipolito. Neither was there any indication that
respondent received Director Hipolito’s 12 November 1999 Memorandum informing him of the
acceptance of his resignation. Therefore, we affirm the ruling of the Court of Appeals that
respondent’s resignation was incomplete and inoperative because respondent was not notified
of the acceptance of his resignation.1avv phi 1
Petitioner’s contention that respondent knew that his resignation was accepted because
respondent had notice that his application for leave of absence was approved does not deserve
any merit. As respondent explained, there is a specific form used for an application of leave of
absence and the approval of his application for leave of absence does not necessarily mean the
acceptance of his resignation.
On respondent’s alleged employment with the PRBC, the Court notes that if respondent was
employed by PRBC, it was undertaken during his approved leave of absence. It does not have
any connection with the acceptance of his resignation. We agree with the findings and
conclusions of the Court of Appeals that this does not amount to abandonment. If respondent
was indeed employed by PRBC during his approved leave of absence and he violated Civil
Service rules, then the proper case should be filed against him.
Resignation may be
Withdrawn before its Acceptance
Until the resignation is accepted, the tender or offer to resign is revocable.36 And the resignation
is not effective where it was withdrawn before it was accepted.37
In this case, since respondent’s resignation was not finally and conclusively accepted as he was
not duly notified of its acceptance, respondent could validly withdraw his resignation. There was
no need for Director Hipolito to accept the withdrawal of resignation since there was no valid
acceptance of the application of resignation in the first place. Undersecretary Ordoñez also
validly issued the detail order as respondent had not effectively resigned from DTI-RO2.
WHEREFORE, we DENY the petition and AFFIRM the 1 August 2001 Decision of the Court of
Appeals. We LIFT the temporary restraining order enjoining the Civil Service Commission from
enforcing the 1 August 2001 Decision of the Court of Appeals and respondent Winston T. Singun
from assuming office at the Department of Trade and Industry, Regional Office No. 2, Cagayan
Province.
SO ORDERED.
ACCEPTANCE OF INCOMPATIBLE OFFICE
G.R. No. 138965 June 30, 2006
PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and JOCELYN P.
CELESTINO, Petitioners,
vs.
MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the
Presidential Commission on Good Government, and RONALDO ZAMORA, as Executive
Secretary, Respondents
DECISION
CHICO-NAZARIO, J.:
This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for Temporary
Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.1 This action seeks to
declare as null and void the concurrent appointments of respondent Magdangal B. Elma as
Chairman of the Presidential Commission on Good Government (PCGG) and as Chief
Presidential Legal Counsel (CPLC) for being contrary to Section 13,2 Article VII and Section 7,
par. 2,3 Article IX-B of the 1987 Constitution. In addition, the petitioners further seek the issuance
of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order
to enjoin respondent Elma from holding and discharging the duties of both positions and from
receiving any salaries, compensation or benefits from such positions during the pendency of this
petition.4 Respondent Ronaldo Zamora was sued in his official capacity as Executive Secretary.
On 30 October 1998, respondent Elma was appointed and took his oath of office as Chairman of
the PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG Chairman, respondent
Elma was appointed CPLC. He took his oath of office as CPLC the following day, but he waived
any remuneration that he may receive as CPLC.5
Petitioners cited the case of Civil Liberties Union v. Executive Secretary6 to support their position
that respondent Elma’s concurrent appointments as PCGG Chairman and CPLC contravenes
Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution. Petitioners also
maintained that respondent Elma was holding incompatible offices.
Citing the Resolution7 in Civil Liberties Union v. Executive Secretary, respondents allege that the
strict prohibition against holding multiple positions provided under Section 13, Article VII of the
1987 Constitution applies only to heads of executive departments, their undersecretaries and
assistant secretaries; it does not cover other public officials given the rank of Secretary,
Undersecretary, or Assistant Secretary.
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be
applied in their case. This provision, according to the respondents, would allow a public officer to
hold multiple positions if (1) the law allows the concurrent appointment of the said official; and (2)
the primary functions of either position allows such concurrent appointment. Respondents also
alleged that since there exists a close relation between the two positions and there is no
incompatibility between them, the primary functions of either position would allow respondent
Elma’s concurrent appointments to both positions. Respondents further add that the appointment
of the CPLC among incumbent public officials is an accepted practice.
The resolution of this case had already been overtaken by supervening events. In 2001, the
appointees of former President Joseph Estrada were replaced by the appointees of the
incumbent president, Gloria Macapagal Arroyo. The present PCGG Chairman is Camilo Sabio,
while the position vacated by the last CPLC, now Solicitor General Antonio Nachura, has not yet
been filled. There no longer exists an actual controversy that needs to be resolved. However,
this case raises a significant legal question as yet unresolved - whether the PCGG Chairman can
concurrently hold the position of CPLC. The resolution of this question requires the exercise of
the Court’s judicial power, more specifically its exclusive and final authority to interpret laws.
Moreover, the likelihood that the same substantive issue raised in this case will be raised again
compels this Court to resolve it.8 The rule is that courts will decide a question otherwise moot
and academic if it is "capable of repetition, yet evading review."9
Supervening events, whether intended or accidental, cannot prevent the Court from rendering a
decision if there is a grave violation of the Constitution. Even in cases where supervening events
had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues
raised to formulate controlling principles to guide the bench, bar, and public.10
The merits of this case may now be discussed.
The issue in this case is whether the position of the PCGG Chairman or that of the CPLC falls
under the prohibition against multiple offices imposed by Section 13, Article VII and Section 7,
par. 2, Article IX-B of the 1987 Constitution, which provide that:
Art. VII .
xxxx
Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. x x x
Art. IX-B.
xxxx
Section 7. No elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.
To harmonize these two provisions, this Court, in the case of Civil Liberties Union v. Executive
Secretary,11 construed the prohibition against multiple offices contained in Section 7, Article IX-B
and Section 13, Article VII in this manner:
[T]hus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so
only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B
is meant to lay down the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice-President, Members of the Cabinet, their deputies and assistants.
The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official
to hold more than one office only if "allowed by law or by the primary functions of his position." In
the case of Quimson v. Ozaeta,12 this Court ruled that, "[t]here 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." The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green13 - whether one office is subordinate to the
other, in the sense that one office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x Where
one office is not subordinate to the other, nor the relations of the one to the other such as are
inconsistent and repugnant, there is not that incompatibility from which the law declares that the
acceptance of the one is the vacation of the other. The force of the word, in its application to this
matter is, that from the nature and relations to each other, of the two places, they ought not to be
held by the same person, from the contrariety and antagonism which would result in the attempt
by one person to faithfully and impartially discharge the duties of one, toward the incumbent of
the other. x x x The offices must subordinate, one [over] the other, and they must, per se, have
the right to interfere, one with the other, before they are incompatible at common law. x x x
In this case, an incompatibility exists between the positions of the PCGG Chairman and the
CPLC. The duties of the CPLC include giving independent and impartial legal advice on the
actions of the heads of various executive departments and agencies and to review investigations
involving heads of executive departments and agencies, as well as other Presidential
appointees. The PCGG is, without question, an agency under the Executive Department. Thus,
the actions of the PCGG Chairman are subject to the review of the CPLC. In Memorandum
Order No. 152, issued on 9 July 2004, the Office of the President, in an effort to promote
efficiency and effective coordination, clearly delineated and specified the functions and duties of
its senior officers as such:
SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and provide the
President with legal assistance on matters requiring her action, including matters pertaining to
legislation.
The CPLC shall have the following duties and functions:
a. Exercise administrative supervision over the Office of the CPLC;
b. Review and/or draft legal orders referred to her by the President on the following
matters that are subject of decisions of the President;
1. Executive Orders, proclamations, administrative orders, memorandum orders,
and other legal documents initiated by the President;
2. Decision on investigation involving Cabinet Secretaries, agency heads, or
Presidential appointees with the rank of Secretary conducted by the Presidential
Anti-Graft Commission (PAGC);14
As CPLC, respondent Elma will be required to give his legal opinion on his own actions as
PCGG Chairman and review any investigation conducted by the Presidential Anti-Graft
Commission, which may involve himself as PCGG Chairman. In such cases, questions on his
impartiality will inevitably be raised. This is the situation that the law seeks to avoid in imposing
the prohibition against holding incompatible offices.
Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the concurrent
appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as they are
incompatible offices, this Court will proceed to determine whether such appointments violate the
other constitutional provision regarding multiple offices, Section 13, Article VII of the 1987
Constitution.
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union v. Executive
Secretary,15 this Court already clarified the scope of the prohibition provided in Section 13, Article
VII of the 1987 Constitution. Citing the case of US v. Mouat16 , it specifically identified the persons
who are affected by this prohibition as secretaries, undersecretaries and assistant secretaries; and
categorically excluded public officers who merely have the rank of secretary, undersecretary or assistant
secretary.
Another point of clarification raised by the Solicitor General refers to the persons affected by the
constitutional prohibition. The persons cited in the constitutional provision are the "Members of
the Cabinet, their deputies and assistants." These terms must be given their common and
general acceptation as referring to the heads of the executive departments, their
undersecretaries and assistant secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the
Solicitor General affected thereby. (Underscoring supplied.)
It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a
secretary, undersecretary, nor an assistant secretary, even if the former may have the same
rank as the latter positions.
It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of
the 1987 Constitution to respondent Elma, he remains covered by the general prohibition under
Section 7, Article IX-B and his appointments must still comply with the standard of compatibility
of officers laid down therein; failing which, his appointments are hereby pronounced in violation
of the Constitution.
Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is applicable to
the present case, the defect in respondent Elma’s concurrent appointments to the incompatible
offices of the PCGG Chairman and the CPLC would even be magnified when seen through the
more stringent requirements imposed by the said constitutional provision. In the aforecited case
Civil Liberties Union v. Executive Secretary,17 the Court stressed that the language of Section 13,
Article VII is a definite and unequivocal negation of the privilege of holding multiple offices or
employment. The Court cautiously allowed only two exceptions to the rule against multiple
offices: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing
the Vice-President to become a member of the Cabinet; or (2) posts occupied by the Executive
officials specified in Section 13, Article VII without additional compensation in an ex-officio
capacity as provided by law and as required by the primary functions of said officials’ office. The
Court further qualified that additional duties must not only be closely related to, but must be
required by the official’s primary functions. Moreover, the additional post must be exercised in an
ex-officio capacity, which "denotes an act done in an official character, or as a consequence of
office, and without any other appointment or authority than that conferred by the office."18 Thus, it
will not suffice that no additional compensation shall be received by virtue of the second
appointment, it is mandatory that the second post is required by the primary functions of the first
appointment and is exercised in an ex-officio capacity.
With its forgoing qualifications, it is evident that even Section 13, Article VII does not sanction
this dual appointment. Appointment to the position of PCGG Chairman is not required by the
primary functions of the CPLC, and vice versa. The primary functions of the PCGG Chairman
involve the recovery of ill-gotten wealth accumulated by former President Ferdinand E. Marcos,
his family and associates, the investigation of graft and corruption cases assigned to him by the
President, and the adoption of measures to prevent the occurrence of corruption.19 On the other
hand, the primary functions of the CPLC encompass a different matter, that is, the review and/or
drafting of legal orders referred to him by the President.20 And while respondent Elma did not
receive additional compensation in connection with his position as CPLC, he did not act as either
CPLC or PGCC Chairman in an ex-officio capacity. The fact that a separate appointment had to
be made for respondent Elma to qualify as CPLC negates the premise that he is acting in an ex-
officio capacity.
In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to
respondent Elma since neither the PCGG Chairman nor the CPLC is a Cabinet secretary,
undersecretary, or assistant secretary. Even if this Court assumes, arguendo, that Section 13,
Article VII is applicable to respondent Elma, he still could not be appointed concurrently to the
offices of the PCGG Chairman and CPLC because neither office was occupied by him in an ex-
officio capacity, and the primary functions of one office do not require an appointment to the
other post. Moreover, even if the appointments in question are not covered by Section 13, Article
VII of the 1987 Constitution, said appointments are still prohibited under Section 7, Article IX-B,
which covers all appointive and elective officials, due to the incompatibility between the primary
functions of the offices of the PCGG Chairman and the CPLC.
WHEREFORE, premises considered, this Court partly GRANTS this petition and declares
respondent Magdangal B. Elma’s concurrent appointments as PCGG Chairman and CPLC as
unconstitutional. No costs.
SO ORDERED.
ABANDONMENT OF OFFICE
G.R. No. 133132. February 15, 2001
ALEXIS C. CANONIZADO, EDGAR DULA TORRES and ROGELIO A. PUREZA, petitioners,
vs.
HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN as
Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME
and VIRGINIA U. CRISTOBAL, respondents.
RESOLUTION
GONZAGA-REYES, J.:
Respondents are seeking a reconsideration of the Court’s 25 January 2000 decision, wherein we
declared section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners’
constitutionally mandated right to security of tenure. As a consequence of our ruling, we held
that petitioners’ removal as Commissioners of the National Police Commission (NAPOLCOM)
and the appointment of new Commissioners in their stead were nullities and ordered the
reinstatement of petitioners and the payment of full backwages to be computed from the date
they were removed from office. 1
Some of the errors assigned by the Solicitor General, acting in behalf of respondents, in the
motion for reconsideration have been more than adequately discussed and disposed of by this
Court and hence, do not merit further attention.
Respondents insist that the Court should take judicial notice of then President Estrada’s
appointment of Alexis C. Canonizado to the position of Inspector General of the Internal Affairs
Service (IAS) of the Philippine National Police (PNP) on 30 June 1998, and of Canonizado’s
acceptance and of his having qualified for such position by taking his oath on 2 July 1998 before
then Department of Interior and Local Government Undersecretary Ronaldo Puno and again, on
7 July 1998, this time before the President, since these “partake of official acts of the Executive
Department,” which are matters of mandatory judicial notice, pursuant to section 1 of Rule 129 of
the Rules of Court. 2 By accepting such position, respondents contend that Canonizado is
deemed to have abandoned his claim for reinstatement to the NAPOLCOM since the offices of
NAPOLCOM Commissioner and Inspector General of the IAS are incompatible.
Although petitioners do not deny the appointment of Canonizado as Inspector General, they
maintain that Canonizado’s initiation and tenacious pursuance of the present case would belie
any intention to abandon his former office. Petitioners assert that Canonizado should not be
faulted for seeking gainful employment during the pendency of this case. Furthermore,
petitioners point out that from the time Canonizado assumed office as Inspector General he
never received the salary pertaining to such position, annexing to their comment a certification
issued by the Finance Service Office of the PNP stating this fact. 3
Abandonment of an office is the voluntary relinquishment of an office by the holder, with the
intention of terminating his possession and control thereof. 4 In order to constitute abandonment
of office, it must be total and under such circumstances as clearly to indicate an absolute
relinquishment. 5 There must be a complete abandonment of duties of such continuance that the
law will infer a relinquishment. 6 Abandonment of duties is a voluntary act; 7 it springs from and is
accompanied by deliberation and freedom of choice. 8 There are, therefore, two essential
elements of abandonment: first, an intention to abandon and second, an overt or “external” act
by which the intention is carried into effect. 9
Generally speaking, a person holding a public office may abandon such office by nonuser or
acquiescence. 10 Non-user refers to a neglect to use a right or privilege or to exercise an
office. 11 However, nonperformance of the duties of an office does not constitute abandonment
where such nonperformance results from temporary disability or from involuntary failure to
perform. 12 Abandonment may also result from an acquiescence by the officer in his wrongful
removal or discharge, for instance, after a summary removal, an unreasonable delay by an
officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of
the office. 13 Where, while desiring and intending to hold the office, and with no willful desire or
intention to abandon it, the public officer vacates it in deference to the requirements of a statute
which is afterwards declared unconstitutional, such a surrender will not be deemed an
abandonment and the officer may recover the office. 14
By accepting the position of Inspector General during the pendency of the present case -
brought precisely to assail the constitutionality of his removal from the NAPOLCOM -
Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter
position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was
compelled to do so on the strength of section 8 of RA 8551, which provides –
Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed
expired which shall constitute a bar to their reappointment or an extension of their terms in the
Commission except for current Commissioners who have served less than two (2) years of their
terms of office who may be appointed by the President for a maximum terms of two (2) years.
In our decision of 25 January 2000, we struck down the abovequoted provision for being
violative of petitioners’ constitutionally guaranteed right to security of tenure. Thus, Canonizado
harbored no willful desire or intention to abandon his official duties. In fact, Canonizado, together
with petitioners Edgar Dula Torres and Rogelio A. Pureza, lost no time disputing what they
perceived to be an illegal removal; a few weeks after RA 8551 took effect on 6 March 1998,
petitioners instituted the current action on 15 April 1998, assailing the constitutionality of certain
provisions of said law. The removal of petitioners from their positions by virtue of a
constitutionally infirm act necessarily negates a finding of voluntary relinquishment. 1âw phi1.nêt
The next issue is whether Canonizado’s appointment to and acceptance of the position of
Inspector General should result in an abandonment of his claim for reinstatement to the
NAPOLCOM. It is a well settled rule that he who, while occupying one office, accepts another
incompatible with the first, ipso facto vacates the first office and his title is thereby terminated
without any other act or proceeding. 15 Public policy considerations dictate against allowing the
same individual to perform inconsistent and incompatible duties. 16 The incompatibility
contemplated is not the mere physical impossibility of one person’s performing the duties of the
two offices due to a lack of time or the inability to be in two places at the same moment, but that
which proceeds from the nature and relations of the two positions to each other as to give rise to
contrariety and antagonism should one person attempt to faithfully and impartially discharge the
duties of one toward the incumbent of the other. 17
There is no question that the positions of NAPOLCOM Commissioner and Inspector General of
the IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any
personnel of the IAS from sitting in a committee charged with the task of deliberating on the
appointment, promotion, or assignment of any PNP personnel, 18 whereas the NAPOLCOM has
the power of control and supervision over the PNP. 19 However, the rule on incompatibility of
duties will not apply to the case at bar because at no point did Canonizado discharge the
functions of the two offices simultaneously. Canonizado was forced out of his first office by the
enactment of section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector
General on 30 June 1998, he had ceased to discharge his official functions as NAPOLCOM
Commissioner. As a matter of fact, it was on this same date that Leo S. Magahum and Cleofe M.
Factoran were appointed as NAPOLCOM Commissioners by then President Estrada, to join
Romeo L. Cairme and Jose Percival L. Adiong - who were earlier appointed and given a term
extension, respectively, by then President Ramos - thereby completing the appointments of the
four regular members of the NAPOLCOM, pursuant to section 4 20 of the amendatory law. Thus,
to reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner
never occupied the two positions, of Commissioner and Inspector General, nor discharged their
respective functions, concurrently.
At this juncture, two cases should be mentioned for their factual circumstances almost nearly
coincide with that of petitioners. The first is Tan v. Gimenez 21 wherein petitioner Francisco Tan,
a public school teacher, was required to resign by the Commissioner of Civil Service for gross
misconduct. Tan appealed to the Civil Service Board of Appeals, which reversed the decision of
the Commissioner and acquitted him of the charge. During the pendency of Tan’s appeal, he
worked as a clerk in the Office of the Provincial Treasurer of Leyte. The Court held that
accepting this second position did not constitute abandonment of his former position because -
[h]e was ordered to resign from the service with prejudice to reinstatement pursuant to the
decision of the Commissioner of Civil Service and by virtue thereof was prevented from
exercising the functions of his position and receiving the corresponding compensation therefor.
While thus deprived of his office and emoluments thereunto appertaining the petitioner had to
find means to support himself and his family. The fact that during the time his appeal was
pending and was thus deprived of his office and salary, he sought and found employment in
another branch of the government does not constitute abandonment of his former position. To
deny him the right to collect his back salaries during such period would be tantamount to
punishing him after his exoneration from the charge which caused his dismissal from the service.
xxx
Very similar to Tan is the case of Gonzales v. Hernandez. 22 In this 1961 case, petitioner
Guillermo Gonzales sought reinstatement to his former position as attorney-general of the
Investigation and Secret Service Division of the Department of Finance. As in Tan, Gonzales
was compelled to resign from office by the Commissioner of Civil Service, who found him guilty
of disreputable conduct. During the pendency of his appeal with the Civil Service Board of
Appeals, petitioner applied for and accepted employment as an emergency helper in the
Government Service Insurance System. The Board of Appeals eventually modified the
Commissioner’s finding by lowering the penalty from removal from office to suspension of two
months without pay. In response to the question of whether Gonzales was deemed to have
abandoned his position by accepting another position in the GSIS, the Court held that –
Plaintiff’s position in the GSIS was temporary in nature, during the period of an emergency only.
He had the right to live during the pendency of his appeal and naturally the right to accept any
form of employment. In any case as the court below found, this temporary employment is not
incompatible with his old position; he could resign this temporary position any time as soon as
his case has been definitely decided in his favor.
xxx
Although the Court found that the second position accepted by Gonzales was only temporary in
nature, the rule on incompatibility of duties makes no such distinction between a permanent or
temporary second office. Moreover, the Court still invoked the rationale previously cited in Tan -
that petitioner’s “right to live” justified his acceptance of other employment during the pendency
of his appeal. The Court held that Gonzales’s second position was not “incompatible” with the
first since he could resign from the second position when the case is finally decided in his favor
and before he re-assumes his previous office.
As in the Tan and Gonzales cases, Canonizado was compelled to leave his position as
Commissioner, not by an erroneous decision, but by an unconstitutional provision of law.
Canonizado, like the petitioners in the above mentioned cases, held a second office during the
period that his appeal was pending. As stated in the Comment filed by petitioners, Canonizado
was impelled to accept this subsequent position by a desire to continue serving the country, in
whatever capacity. 23 Surely, this selfless and noble aspiration deserves to be placed on at least
equal footing with the worthy goal of providing for oneself and one’s family, either of which are
sufficient to justify Canonizado’s acceptance of the position of Inspector General. A contrary
ruling would deprive petitioner of his right to live, which contemplates not only a right to earn a
living, as held in previous cases, but also a right to lead a useful and productive life.
Furthermore, prohibiting Canonizado from accepting a second position during the pendency of
his petition would be to unjustly compel him to bear the consequences of an unconstitutional act
which under no circumstance can be attributed to him. However, before Canonizado can re-
assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP.
Respondents also raise some questions regarding the execution of the Court’s decision. They
cite the fact that because there are three petitioners who were ordered reinstated and four
persons currently acting as NAPOLCOM commissioners, namely Romeo L. Cairme, Jose
Percival L. Adiong, 24 Leo S. Magahum and Cleofe M. Factoran, 25 it is unclear who of the current
commissioners will be replaced by petitioners. Respondents point out that the execution of the
decision becomes particularly complicated when it comes to Adiong, who was a member of the
NAPOLCOM under Republic Act No. 6975 (RA 6975), but was removed therefrom and
subsequently re-appointed for a two-year term, pursuant to RA 8551. According to respondents,
given Adiong’s peculiar situation, it is unclear whether the latter should also be entitled to
reinstatement as a result of the assailed decision. 26 Adiong, on his own behalf, filed a Motion for
Clarification 27 with this Court contending that, if the Court should uphold the declaration of nullity
of section 8 of RA 8551, then he is also entitled to reinstatement to the NAPOLCOM pursuant to
his appointment under RA 6975.
An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no
protection. 28 Therefore, the unavoidable consequence of the Court’s declaration that section 8 of
RA 8551 violates the fundamental law is that all acts done pursuant to such provision shall be
null and void, including the removal of petitioners and Adiong from their positions in the
NAPOLCOM and the appointment of new commissioners in their stead. When a regular
government employee is illegally dismissed, his position does not become vacant and the new
appointment made in order to replace him is null and void ab initio. 29 Rudimentary is the precept
that there can be no valid appointment to a non-vacant position. 30 Accordingly, Adiong’s
appointment on 11 March 1998 for a term of two years, pursuant to section 8 of RA 8551, is null
and void. However, he should now be permitted to enjoy the remainder of his term under RA
6975. Therefore, based on our foregoing disquisition, there should no longer be any doubt as to
the proper execution of our 25 January 2000 decision – all the Commissioners appointed under
RA 8551 should be removed from office, in order to give way to the reinstatement of petitioners
and respondent Adiong.
Respondents insist that the present case is similar to a quo warranto proceeding since
petitioners prayed for the removal of the incumbent commissioners and for their reinstatement.
Therefore, they claim that Magahum and Factoran should have been impleaded as respondents
and given the opportunity to defend their positions. 31 We disagree. First and foremost, the
petition filed before this Court sought a ruling on the constitutionality of sections 4 and 8 of RA
8551. The inevitable consequence of this Court’s declaration that section 8 of said law is
unconstitutional is the removal of Adiong, Cairme, Magahum and Factoran from the NAPOLCOM
and the reinstatement thereto of petitioners, including Adiong, although under his original
appointment under RA 6975. As discussed earlier, an unconstitutional law is not a law at all; it is
in legal contemplation, as inoperative as though it had never been passed. There being no
vacancy created in the first place in the office of the NAPOLCOM, the appointments of
Magahum, Factoran, Cairme and Adiong pursuant to RA 8551 are legal nullities, which cannot
be the source of any rights. 32 It is noted that Magahum and Factoran were appointed after more
than two months from the time the present petition was filed with the Court, which explains why
they were originally not impleaded. Had they been interested in defending the validity of their
appointments, Magahum and Factoran could have filed a motion to intervene with this Court. It is
highly improbable that they were not aware of the present petition since their colleagues, Cairme
and Adiong, were respondents therein. The fact that they did not intervene could only mean that
they were willing to be bound by the Court’s decision in this case. In addition, it is noted that
respondents did not raise this issue when they filed their comment to the petition on 21
September 1998, even though at that time both Magahum and Factoran were already appointed,
albeit invalidly, to the NAPOLCOM. Only after the promulgation of our 25 January 2000 decision
did respondents belatedly insist that Magahum and Factoran should be made parties to this
case. It is not for a party to participate in the proceedings, submit his case for decision and
accept the judgment if it is favorable to him but attack it for any reason when it is adverse. 33
In the event that the Court should affirm its decision, respondents pray that the Court apply the
ruling in Mayor v. Macaraig 34 which provided that –
In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion,
Daniel M. Lucas, Jr., Ceferino E. Dulay, and Conrado Maglaya as Commissioners of the NLRC
is ruled unconstitutional and void; however, to avoid displacement of any of the incumbent
Commissioners now serving, it not appearing that any of them is unfit or has given cause for
removal, and conformably to the alternative prayer of the petitioners themselves, it is ORDERED
that said petitioners be paid all salaries, benefits and emoluments accruing to them for the
unexpired portions of their six-year terms and allowed to enjoy retirement benefits under
applicable laws, pursuant to RA No. 910 and this Court’s Resolution in Ortiz v. Commission on
Elections, G.R. No. 79857, 161 SCRA 812;
xxx
We cannot grant respondents’ prayer for the application of the abovequoted dispositive portion
of Mayor in G.R. No. 91547 and G.R. No. 91730 to the case at bar based on one crucial point of
distinction – unlike in Mayor, petitioners herein did not make any alternative prayer for the
payment of the salaries, benefits, and emoluments accruing to them for the unexpired portions of
their terms in lieu of reinstatement. Contrary to respondents’ contention, the general prayer of
petitioners for “such other reliefs just and equitable” cannot be deemed as an alternative to their
specific prayer for reinstatement. We agree with petitioners’ view that any remedy necessarily
included in this general phrase should be consistent with the specific prayers of petitioners.
1âw phi 1.nêt
Finally, respondents contend that the re-appointment of petitioners under RA 6975 violates
section 16 35 of such law. 36 Once again, respondents did not raise this issue in their comment to
the petition, and are therefore estopped from doing so at this late stage. Moreover, the validity of
the appointments under RA 6975 was never the issue in this case and accordingly, the Court will
not pass upon the same.
WHEREFORE, respondents’ motion for reconsideration is hereby DENIED. However, it is
hereby clarified that our 25 January 2000 decision mandates the reinstatement of Jose Percival
L. Adiong to the NAPOLCOM, together with petitioners herein, pursuant to his appointment
under RA 6975.
SO ORDERED.
REMOVAL
G.R. Nos. 217126-27, November 10, 2015
CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE
OMBUDSMAN, Petitioner, v. COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR
ERWIN S. BINAY, JR., Respondents.
DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially
acknowledged so to be[.]"1ChanRoblesVirtualawlibrary
The Case
Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner
Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office
of the Solicitor General (OSG), assailing: (a) the Resolution3 dated March 16, 2015 of public
respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint Order4 dated March 10, 20,15 of
the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City Government of
Makati, for six (6) months without pay; and (b) the Resolution5 dated March 20, 2015 of the CA,
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt6 in CA-G.R. SP No.
139504.
Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary
injunction8 (WPI) in CA-G.R. SP No. 139453 which further enjoined the implementation of the
preventive suspension order, prompting the Ombudsman to file a supplemental petition9 on April
13, 2015.
The Facts
On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching"
Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public officers and
employees of the City Government of Makati (Binay, Jr., et al), accusing them of Plunder11 and
violation of Republic Act No. (RA) 3019,12 otherwise known as "The Anti-Graft and Corrupt
Practices Act," in connection with the five (5) phases of the procurement and construction of the
Makati City Hall Parking Building (Makati Parking Building).13
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators14 to
conduct a fact-finding investigation, submit an investigation report, and file the necessary
complaint, if warranted (1st Special Panel).15 Pursuant to the Ombudsman's directive, on March
5, 2015, the 1st Special Panel filed a complaint16 (OMB Complaint) against Binay, Jr., et al,
charging them with six (6) administrative cases17 for Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service, and six (6) criminal cases18 for violation of
Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification of Public Documents
(OMB Cases).19
As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities
attending the following procurement and construction phases of the Makati Parking Building
project, committed during his previous and present terms as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013)20
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati
Parking Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed the corresponding contract22 on September 28, 2010,23 without the required
publication and the lack of architectural design,24 and approved the release of funds therefor in
the following amounts as follows: (1) P130,518,394.80 on December 15, 2010;25 (2)
P134,470,659.64 on January 19, 2011;26 (3) P92,775,202.27 on February 25, 2011;27 (4)
P57,148,625.51 on March 28, 2011;28 (5) P40,908,750.61 on May 3, 2011;29 and (6)
P106,672,761.90 on July 7, 2011;30
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract32 on August 18, 2011,33 without the required publication and the lack of architectural
design,34 and approved the release of funds therefor in the following amounts as follows: (1)
P182,325,538.97 on October 4, 2O11;35 (2) P173,132,606.91 on October 28,2011;36 (3)
P80,408,735.20 on December 12, 2011;37 (4) P62,878,291.81 on February 10, 2012;38 and (5)
P59,639,167.90 on October 1, 2012;39
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award40 for Phase V of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract41 on September 13, 2012,42 without the required publication and the lack of architectural
design,43 and approved the release of the funds therefor in the amounts of P32,398,220.0544 and
P30,582,629.3045 on December 20, 2012; and
Binay, Jr.'s Second Term (2013 to 2016)46
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining
balance of the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking
Building project in the amount of P27,443,629.97;47 and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and architectural
services covering the Makati Parking Building project in the amount of P429,011.48.49
On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2nd Special
Panel).50 Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders51 for each
of the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.52
Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the
recommendation of the 2nd Special Panel, issued on March 10, 2015, the subject preventive
suspension order, placing Binay, Jr., et al. under preventive suspension for not more than six (6)
months without pay, during the pendency of the OMB Cases.53 The Ombudsman ruled that the
requisites for the preventive suspension of a public officer are present,54 finding that: (a) the
evidence of Binay, Jr., et al.'s guilt was strong given that (1) the losing bidders and members of
the Bids and Awards Committee of Makati City had attested to the irregularities attending the
Makati Parking Building project; (2) the documents on record negated the publication of bids;
and (3) the disbursement vouchers, checks, and official receipts showed the release of funds;
and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if
proven to be true, warrant removal from public service under the Revised Rules on
Administrative Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s respective
positions give them access to public records and allow them to influence possible witnesses;
hence, their continued stay in office may prejudice the investigation relative to the OMB Cases
filed against them.55 Consequently, the Ombudsman directed the Department of Interior and
Local Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to
immediately implement the preventive suspension order against Binay, Jr., et al., upon receipt of
the same.56
On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City
Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff.57
The Proceedings Before the CA
On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP
No. 139453, seeking the nullification of the preventive suspension order, and praying for the
issuance of a TRO and/or WPI to enjoin its implementation.60Primarily, Binay, Jr. argued that
he could not be held administratively liable for any anomalous activity attending any of the
five (5) phases of the Makati Parking Building project since: (a) Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired during his first
term and that his re-election as City Mayor of Makati for a second term effectively
condoned his administrative liability therefor, if any, thus rendering the administrative cases
against him moot and academic.61In any event, Binay, Jr. claimed that the Ombudsman's
preventive suspension order failed to show that the evidence of guilt presented against
him is strong, maintaining that he did not participate in any of the purported irregularities.62 In
support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear and unmistakable
right to hold public office, having won by landslide vote in the 2010 and 2013 elections, and that,
in view of the condonation doctrine, as well as the lack of evidence to sustain the charges
against him, his suspension from office would undeservedly deprive the electorate of the
services of the person they have conscientiously chosen and voted into office.63
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the
preventive suspension order through the DILG National Capital Region - Regional Director,
Renato L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall of the Makati
City Hall after failing to personally serve the same on Binay, Jr. as the points of entry to the
Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C.
Evangelista administered the oath of office on Makati City Vice Mayor Romulo V. Peña, Jr.
(Peña, Jr.) who thereupon assumed office as Acting Mayor.64
At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015), granting Binay,
Jr.'s prayer for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier
that day.67 Citing the case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent
on its part to issue a TRO in view of the extreme urgency of the matter and seriousness of the
issues raised, considering that if it were established that the acts subject of the administrative
cases against Binay, Jr. were all committed during his prior term, then, applying the condonation
doctrine, Binay, Jr.'s re-election meant that he can no longer be administratively charged.69 The
CA then directed the Ombudsman to comment on Binay, Jr.'s petition for certiorari .70
On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what act was
being restrained and that since the preventive suspension order had already been served and
implemented, there was no longer any act to restrain.72
On the same day, Binay, Jr. filed a petition for contempt,73 docketed as CA-G.R. SP No.
139504, accusing Secretary Roxas, Director Brion, the officials of the Philippine National Police,
and Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding, obstructing, or
degrading the administration of justice.74 The Ombudsman and Department of Justice Secretary
Leila M. De Lima were subsequently impleaded as additional respondents upon Binay, Jr.'s filing
of the amended and supplemental petition for contempt75 (petition for contempt) on March 19,
2015.76 Among others, Binay, Jr. accused the Ombudsman and other respondents therein for
willfully and maliciously ignoring the TRO issued by the CA against the preventive suspension
order.77
In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay,
Jr.'s petition for contempt, directed the Ombudsman to file her comment thereto.79 The cases
were set for hearing of oral arguments on March 30 and 31, 2015.80
The Proceedings Before the Court
Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman
filed the present petition before this Court, assailing the CA's March 16, 2015 Resolution, which
granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015
Resolution directing her to file a comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No.
139504.81 The Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer
for a TRO, citing Section 14 of RA 6770,82 or "The Ombudsman Act of 1989," which states that
no injunctive writ could be issued to delay the Ombudsman's investigation unless there is prima
facie evidence that the subject matter thereof is outside the latter's jurisdiction;83 and (b) the CA's
directive for the Ombudsman to comment on Binay, Jr.'s petition for contempt is illegal and
improper, considering that the Ombudsman is an impeachable officer, and therefore, cannot be
subjected to contempt proceedings.84
In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or
instrumentality of government, including the Office of the Ombudsman, in case of grave abuse of
discretion amounting to lack or excess of jurisdiction, which he asserts was committed in this
case when said office issued the preventive suspension order against him.86 Binay, Jr. posits
that it was incumbent upon the Ombudsman to1 have been apprised of the condonation doctrine
as this would have weighed heavily in determining whether there was strong evidence to warrant
the issuance of the preventive suspension order.87 In this relation, Binay, Jr. maintains that the
CA correctly enjoined the implementation of the preventive suspension order given his clear and
unmistakable right to public office, and that it is clear that he could not be held administratively
liable for any of the charges against him since his subsequent re-election in 2013 operated as a
condonation of any administrative offenses he may have committed during his previous
term.88 As regards the CA's order for the Ombudsman to comment on his petition for contempt,
Binay, Jr. submits that while the Ombudsman is indeed an impeachable officer and, hence,
cannot be removed from office except by way of impeachment, an action for contempt imposes
the penalty of fine and imprisonment, without necessarily resulting in removal from office. Thus,
the fact that the Ombudsman is an impeachable officer should not deprive the CA of its inherent
power to punish contempt.89
Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it
were held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of
the preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right
to the final relief prayed for, namely, the nullification of the preventive suspension order, in view
of the condonation doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from 2007 to 2013.93 In this
regard, the CA added that, although there were acts which were apparently committed by Binay,
Jr. beyond his first term — namely, the alleged payments on July 3, July 4, and July 24,
2013,94 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,95 and Mayor
Garcia v. Mojica96 wherein the condonation doctrine was still applied by the Court although the
payments were made after the official's re-election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election.97 To this, the CA added that
there was no concrete evidence of Binay, Jr.'s participation for the alleged payments made on
July 3, 4, and 24, 2013.98
In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation
doctrine is irrelevant to the determination of whether the evidence of guilt is strong for purposes
of issuing preventive suspension orders. The Ombudsman also maintained that a reliance on the
condonation doctrine is a matter of defense, which should have been raised by Binay, Jr. before
it during the administrative proceedings, and that, at any rate, there is no condonation because
Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013.100
On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties.
Thereafter, they were required to file their respective memoranda.102 In compliance thereto, the
Ombudsman filed her Memorandum103 on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.104
Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on
each other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all
within ten (10) days from receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each other's
memoranda.106 Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of
Comment,107 simply stating that it was mutually agreed upon that the Office of the Ombudsman
would file its Memorandum, consistent with its desire to state its "institutional position."108 In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded, among
others, that this Court abandon the condonation doctrine.109 In view of the foregoing, the case
was deemed submitted for resolution.chanrobleslaw
The Issues Before the Court
Based on the parties' respective pleadings, and as raised during the oral arguments conducted
before this Court, the main issues to be resolved in seriatim are as follows:
I. Whether or not the present petition, and not motions for reconsideration of the assailed
CA issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the
Ombudsman's plain, speedy, and adequate remedy;cralawlawlibrary
II. Whether or not the CA has subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453;cralawlawlibrary
III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI
enjoining the implementation of a preventive suspension order issued by the
Ombudsman;cralawlawlibrary
IV. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually,
the WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive
suspension order against Binay, Jr. based on the condonation doctrine; and
V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s
petition for contempt in CA- G.R. SP No. 139504 is improper and illegal.
The Ruling of the Court
The petition is partly meritorious.chanrobleslaw
I.
A common requirement to both a petition for certiorari and a petition for prohibition taken under
Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy,
and adequate remedy in the ordinary course of law. Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
xxxx
Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or
in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, or any other plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts r with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may require.
x x x x (Emphases supplied)
Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior
to resorting to the extraordinary remedy of certiorari or prohibition since a motion for
reconsideration may still be considered as a plain, speedy, and adequate remedy in the ordinary
course of law. The rationale for the pre-requisite is to grant an opportunity for the lower court or
agency to correct any actual or perceived error attributed to it by the re-examination of the legal
and factual circumstances of the case.110
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the
propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly
relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower
court or agency, x x x."111
In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a
petition for prohibition.112 These are: (a) where the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been
duly raised and passed upon by the lower court, or are the same as those raised and passed
upon in the lower court; (c) where there is an urgent necessity for the resolution of the question
and any further delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was deprived of due process and there is
extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable; (g) where the proceedings in the
lower court are a nullity for lack of due process; (h) where the proceedings were ex parte or in
which the petitioner had no opportunity to object; and (i) where the issue raised is one purely
of law or where public interest is involved.113
In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first
time, the question on the authority of the CA - and of this Court, for that matter - to enjoin the
implementation of a preventive suspension order issued by the Office of the Ombudsman is put
to the fore. This case tests the constitutional and statutory limits of the fundamental powers of
key government institutions - namely, the Office of the Ombudsman, the Legislature, and the
Judiciary - and hence, involves an issue of transcendental public importance that demands no
less than a careful but expeditious resolution. Also raised is the equally important issue on the
propriety of the continuous application of the condonation doctrine as invoked by a public officer
who desires exculpation from administrative liability. As such, the Ombudsman's direct resort
to certiorari and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No.
139504 before the CA, is justified.chanrobleslaw
II.
Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is nonetheless
proper to resolve the issue on the CA's lack of subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a court's
jurisdiction over the subject matter may be raised at any stage of the proceedings. The rationale
is that subject matter jurisdiction is conferred by law, and the lack of it affects the very authority
of the court to take cognizance of and to render judgment on the action.115 Hence, it should be
preliminarily determined if the CA indeed had subject matter jurisdiction over the main CA-G.R.
SP No. 139453 petition, as the same determines the validity of all subsequent proceedings
relative thereto. It is noteworthy to point out that Binay, Jr. was given the opportunity by this
Court to be heard on this issue,116 as he, in fact, duly submitted his opposition through his
comment to the Ombudsman's Memorandum.117 That being said, the Court perceives no
reasonable objection against ruling on this issue.
The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main
petition, and her corollary prayer for its dismissal, is based on her interpretation of Section 14,
RA 6770, or the Ombudsman Act,118 which reads in full:
Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office
of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.
The subject provision may be dissected into two (2) parts.
The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court119) from issuing a writ of injunction to delay an investigation being conducted by
the Office of the Ombudsman. Generally speaking, "[injunction is a judicial writ, process or
proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the
main action or merely a provisional remedy for and as an incident in the main
action."120 Considering the textual qualifier "to delay," which connotes a suspension of an action
while the main case remains pending, the "writ of injunction" mentioned in this paragraph could
only refer to injunctions of the provisional kind, consistent with the nature of a provisional
injunctive relief.
The exception to the no injunction policy is when there is prima facie evidence that the subject
matter of the investigation is outside the office's jurisdiction. The Office of the Ombudsman has
disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with the exception only of impeachable officers,
Members of Congress, and the Judiciary.121 Nonetheless, the Ombudsman retains the power to
investigate any serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if
warranted.122 Note that the Ombudsman has concurrent jurisdiction over certain administrative
cases which are within the jurisdiction of the regular courts or administrative agencies, but has
primary jurisdiction to investigate any act or omission of a public officer or employee who is
under the jurisdiction of the Sandiganbayan.123
On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or
application for remedy may be heard against the decision or findings of the Ombudsman, with
the exception of the Supreme Court on pure questions of law. This paragraph, which the
Ombudsman particularly relies on in arguing that the CA had no jurisdiction over the main CA-
G.R. SP No. 139453 petition, as it is supposedly this Court which has the sole jurisdiction to
conduct a judicial review of its decisions or findings, is vague for two (2) reasons: (1) it is unclear
what the phrase "application for remedy" or the word "findings" refers to; and (2) it does not
specify what procedural remedy is solely allowable to this Court, save that the same be taken
only against a pure question of law. The task then, is to apply the relevant principles of statutory
construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the legislature should be sought
in the words employed to express it, and that when found[,] it should be made to govern, x x x. If
the words of the law seem to be of doubtful import, it may then perhaps become necessary to
look beyond them in order to ascertain what was in the legislative mind at the time the law was
enacted; what the circumstances were, under which the action was taken; what evil, if any, was
meant to be redressed; x x x [a]nd where the law has contemporaneously been put into
operation, and in doing so a construction has necessarily been put upon it, this construction,
especially if followed for some considerable period, is entitled to great respect, as being very
probably a true expression of the legislative purpose, and is not lightly to be overruled, although
it is not conclusive."124
As an aid to construction, courts may avail themselves of the actual proceedings of the
legislative body in interpreting a statute of doubtful meaning. In case of doubt as to what a
provision of a statute means, the meaning put to the provision during the legislative deliberations
may be adopted,125 albeit not controlling in the interpretation of the law.126

A. The Senate deliberations cited by the
Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.
The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on
the matter of judicial review of her office's decisions or findings, is supposedly clear from the
following Senate deliberations:127
Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase
"petition for" delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that,
review or appeal from the decision of the Ombudsman would only be taken not on a petition for
review, but on certiorari.
The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more
difficult to reverse the decision under review?
Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of
facts of the Ombudsman would be almost conclusive if supported by substantial
evidence. Second, we would not unnecessarily clog the docket of the Supreme Court. So,
it in effect will be a very strict appeal procedure.
xxxx
Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive
remedies available to a respondent, the respondent himself has the right to exhaust the
administrative remedies available to him?
Senator Angara. Yes, Mr. President, that is correct.
Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme
Court only on certiorari ?
Senator Angara. On question of law, yes.
Senator Guingona. And no other remedy is available to him?
Senator Angara. Going to the Supreme Court, Mr. President?
Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a
presidential appointee who is the respondent, if there is f no certiorari available, is the
respondent given the right to exhaust his administrative remedies first before the Ombudsman
can take the appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law
principle that before one can go to court, he must exhaust all administrative remedies xxx
available to him before he goes and seeks judicial review.
xxxx
Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the
method of appeal from one of a petition for review to a petition for certiorari ?
Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to
the effect that the finding of facts of the Ombudsman is conclusive if supported by
substantial evidence.
Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I
concur, that in an appeal by certiorari , the appeal is more difficult. Because in certiorari it
is a matter of discretion on the part of the court, whether to give due course to the
petition or dismiss it outright. Is that not correct, Mr. President?
Senator Angara. That is absolutely correct, Mr. President
Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not
the Ombudsman here has acted without jurisdiction and has committed a grave abuse of
discretion amounting to lack of jurisdiction. Is that not the consequence, Mr. President.
Senator Angara. That is correct, Mr. President.
Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to
make it harder to have a judicial review, but should be limited only to cases that I have
enumerated.
Senator Angara. Yes, Mr. President.
Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a
petition for review and a petition for certiorari ; because before, under the 1935 Constitution
appeal from any order, ruling or decision of the COMELEC shall be by means of review. But
under the Constitution it is now by certiorari and the Supreme Court said that by this change, the
court exercising judicial review will not inquire into the facts, into the evidence, because we will
not go deeply by way of review into the evidence on record but its authority will be limited to a
determination of whether the administrative agency acted without, or in excess of, jurisdiction, or
committed a grave abuse of discretion. So, I assume that that is the purpose of this amendment,
Mr. President.
Senator Angara. The distinguished Gentleman has stated it so well.
Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated,
Mr. President.
xxxx
The President. It is evident that there must be some final authority to render decisions.
Should it be the Ombudsman or should it be the Supreme Court?
Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and
has to be the Supreme Court to make the final determination.
The President. Then if that is so, we have to modify Section 17.
Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation
to introduce an appropriate change during the period of Individual Amendments.
xxxx
The President. All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none, the same is approved.128
Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the
exchange begins with the suggestion of Senator Angara to delete the word "review" that comes
after the phrase "petition for review" and, in its stead, insert the word "certiorari" so that the
"review or appeal from the decision of the Ombudsman would not only be taken on a petition for
review, but on certiorari" The ensuing exchange between Senators Gonzales and Angara then
dwells on the purpose of changing the method of review from one of a petition for review to a
petition for certiorari - that is, to make "the appeal x x x more difficult." Ultimately, the
amendment to the change in wording, from "petition for review" to "petition for certiorari" was
approved.
Noticeably, these references to a "petition for review" and the proposed "petition for certiorari"
are nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that
this provision, particularly its second paragraph, does not indicate what specific procedural
remedy one should take in assailing a decision or finding of the Ombudsman; it only reveals that
the remedy be taken to this Court based on pure questions of law. More so, it was even
commented upon during the oral arguments of this case129 that there was no debate or
clarification made on the current formulation of the second paragraph of Section 14, RA 6770
per the available excerpts of the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that the
CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.
On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually
reflects the approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court (fourth paragraph), and
further, his comment on the conclusive nature of the factual findings of the Ombudsman, if
supported by substantial evidence (third paragraph):
Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman
must be filed within five (5) days after receipt of written notice and shall be entertained only on
any of the following grounds:chanRoblesvirtualLawlibrary
(1) New evidence has been discovered which materially affects the order, directive or
decision;cralawlawlibrary
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant.
The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That
only one motion for reconsideration shall be entertained.ChanRoblesVirtualawlibrary
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the written notice of the order, directive
or decision or denial of the motion for reconsideration in accordance with Rule 45 of the
Rules of Court.
The above rules may be amended or modified by the Office of the ' Ombudsman as the interest
of justice may require. (Emphasis and underscoring supplied)
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition
for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-
known that under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed
by Rule 65 of the said Rules. However, it should be discerned that the Ombudsman Act was
passed way back in 1989130 and, hence, before the advent of the 1997 Rules of Civil
Procedure.131 At that time, the governing 1964 Rules of Court,132 consistent with Section 27, RA
6770, referred to the appeal taken thereunder as a petition for certiorari , thus possibly
explaining the remedy's textual denomination, at least in the provision's final approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court
SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition for certiorari ,
within fifteen (15) days from notice of judgment or of the denial of his motion for reconsideration
filed in due time, and paying at the same time, to the clerk of said court the corresponding
docketing fee. The petition shall not be acted upon without proof of service of a copy thereof to
the Court of Appeals. (Emphasis supplied)
B. Construing the second paragraph of
Section 14, RA 6770.
The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the meaning
of the provision.
To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear
any appeal or application for remedy against the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of law." ;cralawlawlibrary
As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against any
decision or finding of the Ombudsman, and (b) "any application of remedy" (subject to the
exception below) against the same. To clarify, the phrase "application for remedy," being a
generally worded provision, and being separated from the term "appeal" by the disjunctive
"or",133 refers to any remedy (whether taken mainly or provisionally), except an appeal, following
the maxim generalia verba sunt generaliter intelligenda: general words are to be understood in a
general sense.134 By the same principle, the word "findings," which is also separated from the
word "decision" by the disjunctive "or", would therefore refer to any finding made by the
Ombudsman (whether final or provisional), except a decision.
The subject provision, however, crafts an exception to the foregoing general rule. While the
specific procedural vehicle is not explicit from its text, it is fairly deducible that the second
paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the decision
or findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy
taken to the Supreme Court on "pure questions of law," whether under the 1964 Rules of
Court or the 1997 Rules of Civil Procedure:
Rule 45, 1964 Rules of Court
RULE 45
Appeal from Court of Appeals to Supreme Court
xxxx
Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters
involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the judgment sought
to be reviewed, together with twelve (12) copies of the record on appeal, if any, and of the
petitioner's brief as filed in the Court of Appeals. A verified statement of the date when notice of
judgment and denial of the motion for reconsideration, if any, were received shall accompany the
petition.
Only questions of law may be raised in the petition and must be distinctly set forth. If no
record on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon
admission of the petition, shall demand from the Court of Appeals the elevation of the whole
record of the case. (Emphasis and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure
RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application
for a writ of preliminary injunction or other provisional remedies and shall raise only questions
of law, which must be distinctly set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or proceeding at any time during its
pendency. (Emphasis and underscoring supplied)
That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a
suggestion that defies traditional norms of procedure. It is basic procedural law that a Rule 65
petition is based on errors of jurisdiction, and not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and law, relate to. In
fact, there is no procedural rule, whether in the old or new Rules, which grounds a Rule 65
petition on pure questions of law. Indeed, it is also a statutory construction principle that the
lawmaking body cannot be said to have intended the establishment of conflicting and hostile
systems on the same subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility.135 There should then be no
confusion that the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this
Court, and no other. In sum, the appropriate construction of this Ombudsman Act provision is
that all remedies against issuances of the Office of the Ombudsman are prohibited, except the
above-stated Rule 45 remedy to the Court on pure questions of law.
C. Validity of the second paragraph of
Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken against final decisions or orders of
lower courts,136 and not against "findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of a
Rule 45 appeal so as to apply to interlocutory "findings" issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the
remedy of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770 also
increased this Court's appellate jurisdiction, without a showing, however, that it gave its consent
to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770
(as above-cited), which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138
In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as
unconstitutional since it had the effect of increasing the appellate jurisdiction of the Court without
its advice and concurrence in violation of Section 30, Article VI of the 1987
Constitution.139 Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of
the present 1997 Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial
agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to
the Court of Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's ratiocinations and
ruling in Fabian were recounted:
The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of
R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure
of the Office of the Ombudsman) on the availability of appeal before the Supreme Court to assail
a decision or order of the Ombudsman in administrative cases. In Fabian, we invalidated
Section 27 of R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other rules
implementing the Act) insofar as it provided for appeal by certiorari under Rule 45 from
the decisions or orders of the Ombudsman in administrative cases. We held that Section
27 of R.A. No. 6770 had the effect, not only of increasing the appellate jurisdiction of this
Court without its advice and concurrence in violation of Section 30, Article VI of the
Constitution; it was also inconsistent with Section 1, Rule 45 of the Rules of Court which
provides that a petition for review on certiorari shall apply only to a review of "judgments
or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court, or other courts authorized by law." We pointedly
said:chanRoblesvirtualLawlibrary
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck
down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from
quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of
the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA
under the provisions of Rule 43.141 (Emphasis supplied)
Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of
Section 27, RA 6770142 - attempts to effectively increase the Supreme Court's appellate
jurisdiction without its advice and concurrence,143 it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing,144Fabian should squarely apply since the above-stated Ombudsman Act provisions
are in part materia in that they "cover the same specific or particular subject matter,"145 that is,
the manner of judicial review over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the
existence of the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition,
including all subsequent proceedings relative thereto, as the Ombudsman herself has
developed, the Court deems it proper to resolve this issue ex mero motu (on its own motion146).
This procedure, as was similarly adopted in Fabian, finds its bearings in settled case law:
The conventional rule, however, is that a challenge on constitutional grounds must be raised by
a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we
shall explain.
Since the constitution is intended for the observance of the judiciary and other departments of
the government and the judges are sworn to support its provisions, the courts are not at liberty to
overlook or disregard its commands or countenance evasions thereof. When it is clear , that a
statute transgresses the authority vested in a legislative body, it is the duty of the courts to
declare that the constitution, and not the statute, governs in a case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in
the pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude
a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine
whether or not it has jurisdiction, it necessarily follows that it may inquire into the constitutionality
of the statute.
Constitutional questions, not raised in the regular and orderly procedure in the trial are
ordinarily rejected unless the jurisdiction of the court below or that of the appellate court
is involved in which case it may be raised at any time or on the court's own motion. The
Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where
that fact is developed. The court has a clearly recognized right to determine its own jurisdiction in
any proceeding.147 (Emphasis supplied)
D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr.
before the CA in order to nullify the preventive suspension order issued by the Ombudsman, an
interlocutory order,148 hence, unappealable.149
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions
for certiorari against unappelable issuances150 of the Ombudsman should be filed before the CA,
and not directly before this Court:
In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension
order issued by the Office of the Ombudsman was - similar to this case - assailed through a Rule
65 petition for certiorari filed by the public officer before the CA, the Court held that "[t]here being
a finding of grave abuse of discretion on the part of the Ombudsman, it was certainly imperative
for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65."152
In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition
for certiorari assailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner employed the correct mode of review in
this case, i.e., a special civil action for certiorari before the Court of Appeals."154 In this relation, it
stated that while "a special civil action for Certiorari is within the concurrent original jurisdiction of
the Supreme Court and the Court of Appeals, such petition should be initially filed with the Court
of Appeals in observance of the doctrine of hierarchy of courts." Further, the Court upheld Barata
v. Abalos, Jr.155 (June 6, 2001), wherein it was ruled that the remedy against final and
unappealable orders of the Office of the Ombudsman in an administrative case was a Rule 65
petition to the CA. The same verdict was reached in Ruivivar156 (September 16, 2008).
Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that the CA has subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition. That being said, the Court now examines the
objections of the Ombudsman, this time against the CA's authority to issue the assailed TRO
and WPI against the implementation of the preventive suspension order, incidental to that main
case.
III.
From the inception of these proceedings, the Ombudsman has been adamant that the CA has
no jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive
suspension orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in
conjunction with her office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it from
judicial intervention,"157 particularly, "from injunctive reliefs traditionally obtainable from the
courts,"158 claiming that said writs may work "just as effectively as direct harassment or political
pressure would."159
A. The concept of Ombudsman independence.
Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of
the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each
for Luzon, Visayas[,] and Mindanao. A separate Deputy for the military establishment may
likewise be appointed. (Emphasis supplied)
In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical
underpinnings of the Office of the Ombudsman:
Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the ( 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree
(PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was tasked principally to investigate, on complaint
or motu proprio, any administrative act of any administrative agency, including any government-
owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979,
the powers previously vested in the Special Prosecutor were transferred to the Tanodbayan
himself. He was given the exclusive authority to conduct preliminary investigation of all cases
cognizable by the Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article
II and the standard of accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:chanRoblesvirtualLawlibrary
Section 27. The State shall maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives.161 (Emphasis supplied)
More significantly, Gonzales III explained the broad scope of the office's mandate, and in
correlation, the impetus behind its independence:
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned
to be the "protector of the people" against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau. This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to directly check and
guard against the ills, abuses and excesses , of the bureaucracy. Pursuant to Section 13 (8),
Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize
the vision of the Constitution. Section 21 of RA No. 6770 provides:chanRoblesvirtualLawlibrary
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and
its subdivisions, instrumentalities, and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary.ChanRoblesVirtualawlibrary
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions,
although not squarely falling under the broad powers granted [to] it by the Constitution and by
RA No. 6770, if these actions are reasonably in line with its official function and consistent with
the law and the Constitution.
The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it
fit to insulate the Office of the Ombudsman from the pressures and influence of
officialdom and partisan politics and from fear of external reprisal by making it an
"independent" office, x x x.
xxxx
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and statutory, that are commensurate ,
with its daunting task of enforcing accountability of public officers.162 (Emphasis and
underscoring supplied)
Gonzales III is the first case which grappled with the meaning of the Ombudsman's
independence vis-a-vis the independence of the other constitutional bodies. Pertinently, the
Court observed:
(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics - they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal
autonomy. In general terms, the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to the extent that the absence of
'independence' would result in the impairment of their core functions"163;cralawlawlibrary
(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The imposition
of restrictions and constraints on the manner the independent constitutional offices allocate
and utilize the funds appropriated for their operations is anathema to fiscal autonomy and
violative not only [of] the express mandate of the Constitution, but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of
our constitutional system is based";164 and
(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for
independence. In the deliberations of the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil Service Commission, instead of one
created by law, on the premise that the effectivity of this body is dependent on its freedom
from the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution on
the Commission on Audit highlighted the developments in the past Constitutions geared
towards insulating the Commission on Audit from political pressure."165
At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office
of the Ombudsman, as well as that of the foregoing independent bodies, meant freedom from
control or supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently intended by the framers to
be independent from executive control or supervision or any form of political influence. At
least insofar as these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized
that the Constitutional Commissions, which have been characterized under the Constitution as
"independent," are not under the control of the President, even if they discharge functions
that are executive in nature. The Court declared as unconstitutional the President's act of
temporarily appointing the respondent in that case as Acting Chairman of the [Commission on
Elections] "however well-meaning" it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the
tenure of the commissioners of the independent Commission on Human Rights could not be
placed under the discretionary power of the President.
xxxx
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior -
but is similar in degree and kind - to the independence similarly guaranteed by the Constitution
to the Constitutional Commissions since all these offices fill the political interstices of a
republican democracy that are crucial to its existence and proper functioning.166 (Emphases and
underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy
or the Special Prosecutor, may be removed from office by the President for any of the grounds
provided for the removal of the Ombudsman, and after due process," partially unconstitutional
insofar as it subjected the Deputy Ombudsman to the disciplinary authority of the President for
violating the principle of independence. Meanwhile, the validity of Section 8 (2), RA 6770 was
maintained insofar as the Office of the Special Prosecutor was concerned since said office was
not considered to be constitutionally within the Office of the Ombudsman and is, hence, not
entitled to the independence the latter enjoys under the Constitution.167
As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:
First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law,
unless the Constitution itself allows, or an amendment thereto is made;cralawlawlibrary
Second: fiscal autonomy, which means that the office "may not be obstructed from [its]
freedom to use or dispose of [its] funds for purposes germane to [its] functions;168hence, its
budget cannot be strategically decreased by officials of the political branches of government so
as to impair said functions; and
Third: insulation from executive supervision and control, which means that those within the
ranks of the office can only be disciplined by an internal authority.
Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the "insidious tentacles of
politics."169
That being the case, the concept of Ombudsman independence cannot be invoked as basis to
insulate the Ombudsman from judicial power constitutionally vested unto the courts. Courts are
apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to all.
Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power - that is,
a provisional writ of injunction against a preventive suspension order - clearly strays from the
concept's rationale of insulating the office from political harassment or pressure.
B. The first paragraph of Section 14, RA
6770 in light of the powers of Congress and the
Court under the 1987 Constitution.
The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it
remains that the first paragraph of Section 14, RA 6770 textually prohibits courts from extending
provisional injunctive relief to delay any investigation conducted by her office. Despite the usage
of the general phrase "[n]o writ of injunction shall be issued by any court," the Ombudsman
herself concedes that the prohibition does not cover the Supreme Court.170 As support, she cites
the following Senate deliberations:
Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I
would just like to inquire for the record whether below the Supreme Court, it is
understood that there is no injunction policy against the Ombudsman by lower courts. Or,
is it necessary to have a special paragraph for that?
Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction
against the Ombudsman being issued.
Senator Maceda. In which case, I think that the intention, this being one of the highest
constitutional bodies, is to subject this only to certiorari to the Supreme Court. I think an
injunction from the Supreme Court is, of course, in order but no lower courts should be
allowed to interfere. We had a very bad experience with even, let us say, the Forestry Code
where no injunction is supposed to be issued against the Department of Natural
Resources. Injunctions are issued right and left by RTC judges all over the country.
The President. Why do we not make an express provision to that effect?
Senator Angara. We would welcome that, Mr. President.
The President. No [writs of injunction] from the trial courts other than the Supreme Court.
Senator Maceda. I so move, Mr. President, for that amendment.
The President. Is there any objection? [Silence] Hearing none, the same is approved.171
Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987
Constitution, acts of the Ombudsman, including interlocutory orders, are subject to the Supreme
Court's power of judicial review As a corollary, the Supreme Court may issue ancillary mjunctive
writs or provisional remedies in the exercise of its power of judicial review over matters
pertaining to ongoing investigations by the Office of the Ombudsman. Respecting the CA,
however, the Ombudsman begs to differ.172
With these submissions, it is therefore apt to examine the validity of the first paragraph of
Section 14, RA 6770 insofar as it prohibits all courts, except this Court, from issuing provisional
writs of injunction to enjoin an Ombudsman investigation. That the constitutionality of this
provision is the lis mota of this case has not been seriously disputed. In fact, the issue anent its
constitutionality was properly raised and presented during the course of these
proceedings.173 More importantly, its resolution is clearly necessary to the complete disposition
of this case.174
In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the
"Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative[,] and the judicial departments of the government."176 The constitutional
demarcation of the three fundamental powers of government is more commonly known as the
principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),177 the
Court held that "there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another."178 In particular, "there is a violation of
the principle when there is impermissible (a) interference with and/or (b) assumption of another
department's functions."179
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the
Supreme Court and all such lower courts:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
This Court is the only court established by the Constitution, while all other lower courts may
be established by laws passed by Congress. Thus, through the passage of Batas Pambansa
Bilang (BP) 129,180 known as "The Judiciary Reorganization Act of 1980," the Court of
Appeals,181 the Regional Trial Courts,182 and the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts183 were established. Later, through the passage of RA
1125,184 and Presidential Decree No. (PD) 1486,185 the Court of Tax Appeals, and the
Sandiganbayan were respectively established.
In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, except that it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5186 of the same Article:
Section 2. The Congress shall have the power to define, prescribe, ' and apportion the
jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5 hereof.
x x x xChanRoblesVirtualawlibrary
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject
matter of an action. In The Diocese ofBacolod v. Commission on Elections,187 subject matter
jurisdiction was defined as "the authority 'to hear and determine cases of the general class
to which the proceedings in question belong and is conferred by the sovereign authority
which organizes the court and defines its powers.'"
Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of
this Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and the
trial courts, through the passage of BP 129, as amended.
In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:
Section 9. Jurisdiction. - The Court of Appeals shall exercise:
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]
Note that the CA's certiorari jurisdiction, as above-stated, is not only original but
also concurrent with the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and
the Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view of
the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine of
hierarchy of courts should be followed. In People v. Cuaresma,188 the doctrine was explained
as follows:
[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any
of the writs an absolute, unrestrained freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals.189
When a court has subject matter jurisdiction over a particular case, as conferred unto it by
law, said court may then exercise its jurisdiction acquired over that case, which is
called judicial power.
Judicial power, as vested in the Supreme Court and all other courts established by law, has
been defined as the "totality of powers a court exercises when it assumes jurisdiction and
hears and decides a case."190 Under Section 1, Article VIII of the 1987 Constitution, it includes
"the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government."
In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the
1987 Constitution:
The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents a
broadening of f judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because they are tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is
a very elastic phrase that can expand or contract according to the disposition of the judiciary.192
Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has
acquired over a particular case conforms to the limits and parameters of the rules of
procedure duly promulgated by this Court. In other words, procedure is the framework within
which judicial power is exercised. In Manila Railroad Co. v. Attorney-General,193 the Court
elucidated that "[t]he power or authority of the court over the subject matter existed and was
fixed before procedure in a given cause began. Procedure does not alter or change that
power or authority; it simply directs the manner in which it shall be fully and justly
exercised. To be sure, in certain cases, if that power is not exercised in conformity with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. This does not mean that it loses jurisdiction of the subject matter."194
While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in
all courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution
reads:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court. (Emphases and underscoring supplied)
In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-
making authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly subjected
to a power-sharing scheme with Congress.198 As it now stands, the 1987 Constitution textually
altered the old provisions by deleting the concurrent power of Congress to amend the
rules, thus solidifying in one body the Court's rule-making powers, in line with the Framers'
vision of institutionalizing a "[s]tronger and more independent judiciary."199
The records of the deliberations of the Constitutional Commission would show200 that the
Framers debated on whether or not the Court's rule-making powers should be shared with
Congress. There was an initial suggestion to insert the sentence "The National Assembly may
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme
Court", right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice
of law, the integrated bar, and legal assistance to the underprivileged^" in the enumeration of
powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete the
former sentence and, instead, after the word "[underprivileged," place a comma (,) to be followed
by "the phrase with the concurrence of the National Assembly." Eventually, a compromise
formulation was reached wherein (a) the Committee members agreed to Commissioner Aquino's
proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said
rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner
Aquino agreed to withdraw his proposal to add "the phrase with the concurrence of the National
Assembly." The changes were approved, thereby leading to the present lack of textual
reference to any form of Congressional participation in Section 5 (5), Article
VIII, supra. The prevailing consideration was that "both bodies, the Supreme Court and
the Legislature, have their inherent powers."201
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules
concerning pleading, practice, and procedure. As pronounced in Echegaray:
The rule making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of constitutional rights.
The Court was also r granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took
away the power of Congress to repeal, alter, or supplement rules concerning pleading,
practice and procedure. In fine, the power to promulgate rules of pleading, practice and
procedure is no longer shared by this Court with Congress, more so with the
Executive.202 (Emphasis and underscoring supplied)
Under its rule-making authority, the Court has periodically passed various rules of procedure,
among others, the current 1997 Rules of Civil Procedure. Identifying the appropriate
procedural remedies needed for the reasonable exercise of every court's judicial power,
the provisional remedies of temporary restraining orders and writs of preliminary
injunction were thus provided.
A temporary restraining order and a writ of preliminary injunction both constitute temporary
measures availed of during the pendency of the action. They are, by nature, ancillary because
they are mere incidents in and are dependent upon the result of the main action. It is well-settled
that the sole object of a temporary restraining order or a writ of preliminary injunction,
whether prohibitory or mandatory, is to preserve the status quo203 until the merits of the
case can be heard. They are usually granted when it is made to appear that there is a
substantial controversy between the parties and one of them is committing an act or threatening
the immediate commission of an act that will cause irreparable injury or destroy the status quo of
the controversy before a full hearing can be had on the merits of the case. In other words, they
are preservative remedies for the protection of substantive rights or interests, and, hence, not a
cause of action in itself, but merely adjunct to a main suit.204 In a sense, they are regulatory
processes meant to prevent a case from being mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a
TRO and a WPI. A preliminary injunction is defined under Section 1,205 Rule 58, while Section
3206 of the same Rule enumerates the grounds for its issuance. Meanwhile, under Section
5207 thereof, a TRO may be issued as a precursor to the issuance of a writ of preliminary
injunction under certain procedural parameters.
The power of a court to issue these provisional injunctive reliefs coincides with its inherent
power to issue all auxiliary writs, processes, and other means necessary to carry its
acquired jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which
reads:
Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, f processes and other means necessary to carry it into
effect may be employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law208 or by these rules, any
suitable process or mode of proceeding may be adopted which appears comfortable to the spirit
of the said law or rules.ChanRoblesVirtualawlibrary
In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or
jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate
jurisdiction"210 over "decisions, orders or resolutions of the RTCs in local tax cases originally
decided or resolved by them in the exercise of their original or appellate jurisdiction,"211 the Court
ruled that said power "should coexist with, and be a complement to, its appellate jurisdiction to
review, by appeal, the final orders and decisions of the RTC, in order to have complete
supervision over the acts of the latter:"212
A grant of appellate jurisdiction implies that there is included in it the power necessary to
exercise it effectively, to make all orders that ; will preserve the subject of the action, and
to give effect to the final determination of the appeal. It carries with it the power to protect that
jurisdiction and to make the decisions of the court thereunder effective. The court, in aid of its
appellate jurisdiction, has authority to control all auxiliary and incidental matters necessary to the
efficient and proper exercise of that jurisdiction. For this purpose, it may, when necessary,
prohibit or restrain the performance of any act which might interfere with the proper exercise of
its rightful jurisdiction in cases pending before it.213 (Emphasis supplied)
In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:
[A] court which is endowed with a particular jurisdiction should have powers which are necessary
to enable it to act effectively within such jurisdiction. These should be regarded as powers
which are inherent in its jurisdiction and the court must possess them in order to enforce
its rules of practice and to suppress any abuses of its process and to t defeat any
attempted thwarting of such process.
x x x x cralawlawlibrary
Indeed, courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers
are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or
are essential to the existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the litigants.214 (Emphases and underscoring
supplied)
Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional
principle, articulated way back in the 1936 case of Angara, that "where a general power is
conferred or duty enjoined, every particular power necessary for the exercise of the one or the
performance of the other is also conferred."215
In the United States, the "inherent powers doctrine refers to the principle, by which the courts
deal with diverse matters over which they are thought to have intrinsic authority like procedural
[rule-making] and general judicial housekeeping. To justify the invocation or exercise of inherent
powers, a court must show that the powers are reasonably necessary to achieve the specific
purpose for which the exercise is sought. Inherent powers enable the judiciary to
accomplish its constitutionally mandated functions."216
In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which
prohibited courts from enjoining the enforcement of a revocation order of an alcohol beverage
license pending appeal,218 the Supreme Court of Kentucky held:
[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably
necessary for the administration of justice within the scope of their jurisdiction. x x x [W]e
said while considering the rule making power and the judicial power to be one and the same that
". . . the grant of judicial power [rule making power] to the courts by the constitution
carries with it, as a necessary incident, the right to make that power effective in the
administration of justice." (Emphases supplied)
Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an
exercise of the court's inherent power, and to this end, stated that any attempt on the part of
Congress to interfere with the same was constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt the language framework of 28
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having
obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of
power, inherent power to do all things reasonably necessary to the administration of justice in
the case before it. In the exercise of this power, a court, when necessary in order to protect
or preserve the subject matter of the litigation, to protect its jurisdiction and to make its
judgment effective, may grant or issue a temporary injunction in aid of or ancillary to the
principal action.
The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the
purview of the legislature to grant or deny the power nor is it within the purview of the
legislature to shape or fashion circumstances under which this inherently judicial power
may be or may not be granted or denied.
This Court has historically recognized constitutional limitations upon the power of the legislature
to interfere with or to inhibit the performance of constitutionally granted and inherently provided
judicial functions, x x x
xxxx
We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of
a cause of action, has, as incidental to its general jurisdiction, inherent power to do all things
reasonably necessary f to the administration of justice in the case before it. . ." This includes
the inherent power to issue injunctions. (Emphases supplied)
Smothers also pointed out that the legislature's authority to provide a right to appeal in the
statute does not necessarily mean that it could control the appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this appeal does not give it the right
to encroach upon the constitutionally granted powers of the judiciary. Once the administrative
action has ended and the right to appeal arises the legislature is void of any right to
control a subsequent appellate judicial proceeding. The judicial rules have come into play
and have preempted the field.219 (Emphasis supplied)
With these considerations in mind, the Court rules that when Congress passed the first
paragraph of Section 14, RA 6770 and, in so doing, took away from the courts their power to
issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it encroached
upon this Court's constitutional rule-making authority. Clearly, these issuances, which are, by
nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court,
are matters of procedure which belong exclusively within the province of this Court. Rule 58 of
the Rules of Court did not create, define, and regulate a right but merely prescribed the means of
implementing an existing right220 since it only provided for temporary reliefs to preserve the
applicant's right in esse which is threatened to be violated during the course of a pending
litigation. In the case of Fabian,211 it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with
procedure.ChanRoblesVirtualawlibrary
Notably, there have been similar attempts on the part of Congress, in the exercise of its
legislative power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The
National Power Corporation from Payment of Filing/ Docket Fees;222 (b) Re: Petition for
Recognition of the Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees;223 and (c) Baguio Market Vendors Multi-Purpose Cooperative
(BAMARVEMPCO) v. Cabato-Cortes224 While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying filing
fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish new rules of
procedure225 solely belongs to the Court, to the exclusion of the legislative and executive
branches of government. On this score, the Court described its authority to promulgate rules
on pleading, practice, and procedure as exclusive and "[o]ne of the safeguards of [its]
institutional independence."226
That Congress has been vested with the authority to define, prescribe, and apportion the
jurisdiction of the various courts under Section 2, Article VIII supra, as well as to create statutory
courts under Section 1, Article VIII supra, does not result in an abnegation of the Court's own
power to promulgate rules of pleading, practice, and procedure under Section 5 (5), Article VIII
supra. Albeit operatively interrelated, these powers are nonetheless institutionally separate and
distinct, each to be preserved under its own sphere of authority. When Congress creates a
court and delimits its jurisdiction, the procedure for which its jurisdiction is exercised is
fixed by the Court through the rules it promulgates. The first paragraph of Section 14, RA
6770 is not a jurisdiction-vesting provision, as the Ombudsman misconceives,227 because it
does not define, prescribe, and apportion the subject matter jurisdiction of courts to act
on certiorari cases; the certiorari jurisdiction of courts, particularly the CA, stands under the
relevant sections of BP 129 which were not shown to have been repealed. Instead, through this
provision, Congress interfered with a provisional remedy that was created by this Court
under its duly promulgated rules of procedure, which utility is both integral and inherent
to every court's exercise of judicial power. Without the Court's consent to the
proscription, as may be manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor, there thus, stands to be a JUSTICE LEONEN:
violation of the separation of powers principle. Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all
courts. This is the power, the competence, the jurisdiction of what constitutional organ?
In addition, it should be pointed out that the breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine the ACTING SOLICITOR GENERAL HILBAY:
constitutional allocation of powers; it also practically dilutes a court's ability to carry out its The Supreme Court, Your Honor.
functions. This is so since a particular case can easily be mooted by supervening events
if no provisional injunctive relief is extended while the court is hearing the same. JUSTICE LEONEN:
Accordingly, the court's acquired jurisdiction, through which it exercises its judicial power, is The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been
rendered nugatory. Indeed, the force of judicial power, especially under the present Constitution, discussed with you by my other colleagues, is that not correct?
cannot be enervated due to a court's inability to regulate what occurs during a proceeding's
course. As earlier intimated, when jurisdiction over the subject matter is accorded by law and has ACTING SOLICITOR GENERAL HILBAY:
been acquired by a court, its exercise thereof should be undipped. To give true meaning to the Correct, Your Honor.
judicial power contemplated by the Framers of our Constitution, the Court's duly promulgated
rules of procedure should therefore remain unabridged, this, even by statute. Truth be told, the JUSTICE LEONEN:
policy against provisional injunctive writs in whatever variant should only subsist under rules of Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?
procedure duly promulgated by the Court given its sole prerogative over the same.
ACTING SOLICITOR GENERAL HILBAY:
The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Correct, Your Honor.
Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors
the foregoing observations: JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court? ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor. JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in
JUSTICE LEONEN: an ordinary case?
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under
the rubric of what is called provisional remedies, our resident expert because Justice Peralta is ACTING SOLICITOR GENERAL HILBAY:
not here so Justice Bersamin for a while. So provisional remedy you have injunction, x x x. It is an ancillary remedy, Your Honor.

xxxx JUSTICE LEONEN:

In fact, it originated as an equitable remedy, is that not correct?
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the ACTING SOLICITOR GENERAL HILBAY:
Constitution, if you have a copy of the Constitution, can you please read that provision? Section Correct, Your Honor.
5, Article VIII the Judiciary subparagraph 5, would you kindly read that provision?
JUSTICE LEONEN:
ACTING SOLICTOR GENERAL HILBAY. In order to preserve the power of a court so that at the end of litigation, it will not be
"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, rendered moot and academic, is that not correct?
practice and procedure in all courts..."
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
JUSTICE LEONEN: Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule.
In that view, isn't Section 14, first paragraph, unconstitutional? A rule of procedure and the Rules of Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY: ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor. Yes, Your Honor.

xxxx JUSTICE LEONEN:

And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a
JUSTICE LEONEN. particular injunction in a court, is that not correct?
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?
ACTING SOLICITOR GENERAL HILBAY:
ACTING SOLICITOR GENERAL HILBAY: Correct, Your Honor.
Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.
xxxx228 (Emphasis supplied)
JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that "[i]t is
supplemental pleading called the bill of t particular [s]? It cannot, because that's part of through the Constitution that the fundamental powers of government are established, limited and
procedure... defined, and by which these powers are distributed among the several departments. The
Constitution is the basic and paramount law to which all other laws must conform and to which
ACTING SOLICITOR GENERAL HILBAY: all persons, including the highest officials of the land, must defer." It would then follow that laws
That is true. that do not conform to the Constitution shall be stricken down for being unconstitutional.230

JUSTICE LEONEN However, despite the ostensible breach of the separation of powers principle, the Court is not
...or for that matter, no Court shall act on a Motion to Quash, is that not correct? oblivious to the policy considerations behind the first paragraph of Section 14, RA 6770, as well
as other statutory provisions of similar import. Thus, pending deliberation on whether or not to
ACTING SOLICITOR GENERAL HILBAY: adopt the same, the Court, under its sole prerogative and authority over all matters of procedure,
Correct. deems it proper to declare as ineffective the prohibition against courts other than the Supreme
Court from issuing provisional injunctive writs to enjoin investigations conducted by the Office of
JUSTICE LEONEN: the Ombudsman, until it is adopted as part of the rules of procedure through an administrative
So what's different with the writ of injunction? circular duly issued therefor.

ACTING SOLICITOR GENERAL HILBAY:
Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that
was created by Congress. In the absence of jurisdiction... (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special
agrarian court it has all procedures with it but it does not attach particularly to that particular
court, is that not correct?
ACTING SOLICTOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court...
Hence, with Congress interfering with matters of procedure (through passing the first paragraph
of Section 14, RA 6770) without the Court's consent thereto, it remains that the CA had the
authority to issue the questioned injunctive writs enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of belaboring the point, these issuances were
merely ancillary to the exercise of the CA's certiorari jurisdiction conferred to it under Section 9
(1), Chapter I of BP 129, as amended, and which it had already acquired over the main CA-G.R.
SP No. 139453 case.
IV.
The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction
in issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order
is a persisting objection to the validity of said injunctive writs. For its proper analysis, the Court
first provides the context of the assailed injunctive writs.
A. Subject matter of the CA's iniunctive writs is the preventive suspension order.
By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its
purpose is to prevent the official to be suspended from using his position and the powers
and prerogatives of his office to influence potential witnesses or tamper with records
which may be vital in the prosecution of the case against him:
Jurisprudential law establishes a clear-cut distinction between suspension as preventive
measure and suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.
Preventive suspension is merely a preventive measure, a preliminary step in an
administrative investigation. The purpose of the suspension order is to prevent the
accused from using his position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which may be vital in the
prosecution of the case against him. If after such investigation, the charge is established and
the person investigated is found guilty of acts warranting his suspension or removal, then he is
suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule
XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary
Not being a penalty, the period within which one is under preventive suspension is not
considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV
provides:chanRoblesvirtualLawlibrary
Section 25. The period within which a public officer or employee charged is placed under
preventive suspension shall not be considered part of the actual penalty of
suspension imposed upon the employee found guilty.232 (Emphases
supplied)ChanRoblesVirtualawlibrary
The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA
6770:
Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend
any officer or employee under his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the respondent's continued
stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition
of the respondent, in which case the period of such delay shall not be counted in computing the
period of suspension herein provided. (Emphasis and underscoring supplied)
In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance
of an order of preventive suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first
requirement:chanRoblesvirtualLawlibrary
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty;cralawlawlibrary
(b) The charge would warrant removal from the service; or
(c) The respondent's continued stay in office may prejudice the case filed against
him.233ChanRoblesVirtualawlibrary
B. The basis of the CA's injunctive writs is the condonation doctrine.
Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the
Ombudsman's non-compliance with the requisites provided in Section 24, RA 6770 was not the
basis for the issuance of the assailed injunctive writs.
The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was
based on the case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court
emphasized that "if it were established in the CA that the acts subject of the administrative
complaint were indeed committed during petitioner [Garcia's] prior term, then, following settled
jurisprudence, he can no longer be administratively charged."235 Thus, the Court, contemplating
the application of the condonation doctrine, among others, cautioned, in the said case, that "it
would have been more prudent for [the appellate court] to have, at the very least, on account of
the extreme urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO x x x"236 during the pendency of the proceedings.
Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that
Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification of the
preventive suspension order, finding that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous activities relative to the Makati
Parking Building project from 2007 to 2013.238 Moreover, the CA observed that although there
were acts which were apparently committed by Binay, Jr. beyond his first term , i.e., the alleged
payments on July 3, 4, and 24, 2013,239 corresponding to the services of Hillmarc's and MANA -
still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima v.
Guingona, Jr.,240 and Mayor Garcia v. Mojica,241 wherein the condonation dobtrine was
applied by the Court although the payments were made after the official's election, reasoning
that the payments were merely effected pursuant to contracts executed before said re-
election.242
The Ombudsman contends that it was inappropriate for the CA to have considered the
condonation doctrine since it was a matter of defense which should have been raised and
passed upon by her office during the administrative disciplinary proceedings.243 However, the
Court agrees with the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in conformity with the ruling
in Governor Garcia, Jr., which was the subsisting jurisprudence at that time. Thus, since
condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,244 the CA
did not err in passing upon the same. Note that although Binay, Jr. secondarily argued that the
evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453,245 it
appears that the CA found that the application of the condonation doctrine was already sufficient
to enjoin the implementation of the preventive suspension order. Again, there is nothing aberrant
with this since, as remarked in the same case of Governor Garcia, Jr., if it was established that
the acts subject of the administrative complaint were indeed committed during Binay, Jr.'s prior
term, then, following the condonation doctrine, he can no longer be administratively charged. In
other words, with condonation having been invoked by Binay, Jr. as an exculpatory affirmative
defense at the onset, the CA deemed it unnecessary to determine if the evidence of guilt against
him was strong, at least for the purpose of issuing the subject injunctive writs.
With the preliminary objection resolved and the basis of the assailed writs herein laid down, the
Court now proceeds to determine if the CA gravely abused its discretion in applying the
condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined as "[a] victim's express or implied
forgiveness of an offense, [especially] by treating the offender as if there had been no
offense."246
The condonation doctrine - which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon - is not based on statutory law. It is a jurisprudential
creation that originated from the 1959 case of Pascual v. Hon. Provincial Board ofNueva
Ecija,247 (Pascual), which was therefore decided under the 1935 Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija,
sometime in November 1951, and was later re-elected to the same position in 1955. During his
second term, or on October 6, 1956, the Acting Provincial Governor filed administrative
charges before the Provincial Board of Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on
December 18 and 20, 1954. In defense, Arturo Pascual argued that he cannot be made liable for
the acts charged against him since they were committed during his previous term of office, and
therefore, invalid grounds for disciplining him during his second term. The Provincial Board, as
well as the Court of First Instance of Nueva Ecija, later decided against Arturo Pascual, and
when the case reached this Court on appeal, it recognized that the controversy posed a novel
issue - that is, whether or not an elective official may be disciplined for a wrongful act committed
by him during his immediately preceding term of office.
As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and "found that cases on the matter are conflicting due in part, probably,
to differences in statutes and constitutional provisions, and also, in part, to a divergence of views
with respect to the question of whether the subsequent election or appointment condones the
prior misconduct."248Without going into the variables of these conflicting views and cases,
it proceeded to state that:
The weight of authorities x x x seems to incline toward the rule denying the right to
remove one from office because of misconduct during a prior term, to which we fully
subscribe.249 (Emphasis and underscoring supplied)
The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation,
which, in the words of Pascual, theorizes that an official's re-election denies the right to remove
him from office due to a misconduct during a prior term. In fact, as pointed out during the oral
arguments of this case, at least seventeen (17) states in the US have abandoned the
condonation doctrine.250 The Ombudsman aptly cites several rulings of various US State courts,
as well as literature published on the matter, to demonstrate the fact that the doctrine is not
uniformly applied across all state jurisdictions. Indeed, the treatment is nuanced:
(1) For one, it has been widely recognized that the propriety of removing a public officer from his
current term or office for misconduct which he allegedly committed in a prior term of office is
governed by the language of the statute or constitutional provision applicable to the facts of a
particular case (see In Re Removal of Member of Council Coppola).251 As an example, a Texas
statute, on the one hand, expressly allows removal only for an act committed during a present
term: "no officer shall be prosecuted or removed from office for any act he may have committed
prior to his election to office" (see State ex rel. Rowlings v. Loomis).252 On the other hand, the
Supreme Court of Oklahoma allows removal from office for "acts of commission, omission, or
neglect committed, done or omitted during a previous or preceding term of office" (see State v.
Bailey)253 Meanwhile, in some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office." On one end, the
Supreme Court of Ohio strictly construed a removal statute containing the phrase "misfeasance
of malfeasance in office" and thereby declared that, in the absence of clear legislative language
making, the word "office" must be limited to the single term during which the offense charged
against the public officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
County)254 Similarly, the Common Pleas Court of Allegheny County, Pennsylvania decided that
the phrase "in office" in its state constitution was a time limitation with regard to the grounds of
removal, so that an officer could not be removed for misbehaviour which occurred; prior to the
taking of the office (see Commonwealth v. Rudman)255 The opposite was construed in the
Supreme Court of Louisiana which took the view that an officer's inability to hold an office
resulted from the commission of certain offenses, and at once rendered him unfit to continue in
office, adding the fact that the officer had been re-elected did not condone or purge the offense
(see State ex rel. Billon v. Bourgeois).256 Also, in the Supreme Court of New York, Apellate
Division, Fourth Department, the court construed the words "in office" to refer not to a particular
term of office but to an entire tenure; it stated that the whole purpose of the legislature in
enacting the statute in question could easily be lost sight of, and the intent of the law-making
body be thwarted, if an unworthy official could not be removed during one term for misconduct
for a previous one (Newman v. Strobel).257
(2) For another, condonation depended on whether or not the public officer was a successor in
the same office for which he has been administratively charged. The "own-successor theory,"
which is recognized in numerous States as an exception to condonation doctrine, is premised on
the idea that each term of a re-elected incumbent is not taken as separate and distinct, but
rather, regarded as one continuous term of office. Thus, infractions committed in a previous term
are grounds for removal because a re-elected incumbent has no prior term to speak
of258 (see Attorney-General v. Tufts;259State v. Welsh;260Hawkins v. Common Council of Grand
Rapids;261Territory v. Sanches;262 and Tibbs v. City of Atlanta).263
(3) Furthermore, some State courts took into consideration the continuing nature of an offense in
cases where the condonation doctrine was invoked. In State ex rel. Douglas v.
Megaarden,264 the public officer charged with malversation of public funds was denied the
defense of condonation by the Supreme Court of Minnesota, observing that "the large sums of
money illegally collected during the previous years are still retained by him." In State ex rel. Beck
v. Harvey265 the Supreme Court of Kansas ruled that "there is no necessity" of applying the
condonation doctrine since "the misconduct continued in the present term of office[;] [thus] there
was a duty upon defendant to restore this money on demand of the county commissioners."
Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court of Kansas held that
"insofar as nondelivery and excessive prices are concerned, x x x there remains a continuing
duty on the part of the defendant to make restitution to the country x x x, this duty extends into
the present term, and neglect to discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there
is a "weight of authority" in the US on the condonation doctrine. In fact, without any cogent
exegesis to show that Pascual had accounted for the numerous factors relevant to the debate on
condonation, an outright adoption of the doctrine in this jurisdiction would not have been proper.
At any rate, these US cases are only of persuasive value in the process of this Court's decision-
making. "[They] are not relied upon as precedents, but as guides of interpretation."267 Therefore,
the ultimate analysis is on whether or not the condonation doctrine, as espoused in Pascual, and
carried over in numerous cases after, can be held up against prevailing legal norms. Note that
the doctrine of stare decisis does not preclude this Court from revisiting existing doctrine. As
adjudged in the case of Belgica, the stare decisis rule should not operate when there are
powerful countervailing considerations against its application.268 In other words, stare decisis
becomes an intractable rule only when circumstances exist to preclude reversal of standing
precedent.269 As the Ombudsman correctly points out, jurisprudence, after all, is not a rigid,
atemporal abstraction; it is an organic creature that develops and devolves along with the society
within which it thrives.270 In the words of a recent US Supreme Court Decision, "[w]hat we can
decide, we can undecide."271
In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the
legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935
Constitution, which dated provisions do not reflect the experience of the Filipino People under
the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of course,
the sheer impact of the condonation doctrine on public accountability, calls
for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in which the public officer
was elected for each term is separate and distinct:
Offenses committed, or acts done, during previous term are generally held not to furnish
cause for removal and this is especially true where the constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal from office, and
disqualification from holding office for the term for which the officer was elected or
appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell,
40 S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of
Kingfisher County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A.
67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.272
Second, an elective official's re-election serves as a condonation of previous misconduct,
thereby cutting the right to remove him therefor; and
[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to
the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs.
Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.273 (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and
character of candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
(NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of office.
To do otherwise would be to deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed that they did this with knowledge
of his life and character, and that they disregarded or forgave his faults or misconduct, if
he had been guilty of any. It is not for the court, by reason of such faults or misconduct to
practically overrule the will of the people.274 (Emphases supplied)
The notable cases on condonation following Pascual are as follows:
(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation
doctrine, thereby quoting the above-stated passages from Pascual in verbatim.
(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the
condonation doctrine does not apply to a criminal case. It was explained that a criminal case
is different from an administrative case in that the former involves the People of the Philippines
as a community, and is a public wrong to the State at large; whereas, in the latter, only the
populace of the constituency he serves is affected. In addition, the Court noted that it is only the
President who may pardon a criminal offense.
(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987
Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election merely supervened the pendency of, the
proceedings.
(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the
condonation doctrine by stating that the same is justified by "sound public policy."
According to the Court, condonation prevented the elective official from being "hounded" by
administrative cases filed by his "political enemies" during a new term, for which he has to
defend himself "to the detriment of public service." Also, the Court mentioned that the
administrative liability condoned by re-election covered the execution of the contract and the
incidents related therewith.279
(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the
doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was administratively
charged for his involvement in an anomalous contract for the supply of asphalt for Cebu City,
executed only four (4) days before the upcoming elections. The Court ruled that notwithstanding
the timing of the contract's execution, the electorate is presumed to have known the petitioner's
background and character, including his past misconduct; hence, his subsequent re-election was
deemed a condonation of his prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine should be the time when the
contract was perfected; this meant that as long as the contract was entered into during a
prior term, acts which were done to implement the same, even if done during a
succeeding term, do not negate the application of the condonation doctrine in favor of the
elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein
the Court explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct occurred four days
before the elections, respectively. Salalima did not distinguish as to the date of filing of the
administrative complaint, as long as the alleged misconduct was committed during the prior term,
the precise timing or period of which Garcia did not further distinguish, as long as the
wrongdoing that gave rise to the public official's culpability was committed prior to the date of
reelection.282 (Emphasis supplied)ChanRoblesVirtualawlibrary
The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation
doctrine would not apply to appointive officials since, as to them, there is no sovereign will to
disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked
that it would have been prudent for the appellate court therein to have issued a temporary
restraining order against the implementation of a preventive suspension order issued by the
Ombudsman in view of the condonation doctrine.
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia,
and Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed injunctive writs - would show that the basis for
condonation under the prevailing constitutional and statutory framework was never accounted
for. What remains apparent from the text of these cases is that the basis for condonation, as
jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual, which
was lifted from rulings of US courts where condonation was amply supported by their own state
laws. With respect to its applicability to administrative cases, the core premise of condonation -
that is, an elective official's re-election cuts qff the right to remove him for an administrative
offense committed during a prior term - was adopted hook, line, and sinker in our jurisprudence
largely because the legality of that doctrine was never tested against existing legal norms. As in
the US, the propriety of condonation is - as it should be -dependent on the legal foundation of
the adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in
order to determine if there is legal basis for the continued application of the doctrine of
condonation.
The foundation of our entire legal system is the Constitution. It is the supreme law of the
land;284 thus, the unbending rule is that every statute should be read in light of the
Constitution.285 Likewise, the Constitution is a framework of a workable government; hence, its
interpretation must take into account the complexities, realities, and politics attendant to the
operation of the political branches of government.286
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided
within the context of the 1935 Constitution which was silent with respect to public accountability,
or of the nature of public office being a public trust. The provision in the 1935 Constitution that
comes closest in dealing with public office is Section 2, Article II which states that "[t]he defense
of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be
required by law to render personal military or civil service."287 Perhaps owing to the 1935
Constitution's silence on public accountability, and considering the dearth of jurisprudential
rulings on the matter, as well as the variance in the policy considerations, there was no glaring
objection confronting the Pascual Court in adopting the condonation doctrine that originated from
select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with public officers underwent
a significant change. The new charter introduced an entire article on accountability of public
officers, found in Article XIII. Section 1 thereof positively recognized, acknowledged, and
declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and employees
shall serve with the highest degree of responsibility, integrity, loyalty and efficiency, and
shall remain accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the
1987 Constitution, which sets forth in the Declaration of Principles and State Policies in Article II
that "[t]he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."288 Learning how unbridled
power could corrupt public servants under the regime of a dictator, the Framers put primacy on
the integrity of the public service by declaring it as a constitutional principle and a State policy.
More significantly, the 1987 Constitution strengthened and solidified what has been first
proclaimed in the 1973 Constitution by commanding public officers to be accountable to the
people at all times:
Section 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency and act with patriotism and justice, and lead modest
lives.ChanRoblesVirtualawlibrary
In Belgica, it was explained that:
[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of the
Constitution which embodies the parameters of the people's trust. The notion of a public trust
connotes accountability x x x.289 (Emphasis supplied)ChanRoblesVirtualawlibrary
The same mandate is found in the Revised Administrative Code under the section of the Civil
Service Commission,290 and also, in the Code of Conduct and Ethical Standards for Public
Officials and Employees.291
For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an
elective local official from office are stated in Section 60 of Republic Act No.
7160,292 otherwise known as the "Local Government Code of 1991" (LGC), which was approved
on October 10 1991, and took effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined,
suspended, or removed from office on any of the r following
grounds:chanRoblesvirtualLawlibrary
(a) Disloyalty to the Republic of the Philippines;cralawlawlibrary
(b) Culpable violation of the Constitution;cralawlawlibrary
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of
duty;cralawlawlibrary
(d) Commission of any offense involving moral turpitude or an offense punishable by at least
prision mayor;cralawlawlibrary
(e) Abuse of authority;cralawlawlibrary
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan,
and sangguniang barangay;cralawlawlibrary
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant
of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order
of the proper court.
Related to this provision is Section 40 (b) of the LGC which states that those removed from
office as a result of an administrative case shall be disqualified from running for any
elective local position:
Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:
xxxx
(b) Those removed from office as a result of an administrative case;
x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public
office:
Section 52. - Administrative Disabilities Inherent in Certain Penalties. -
a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of
retirement benefits, perpetual disqualification from holding public office, and bar from
taking the civil service examinations.
In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed
the unexpired term of the elective local official nor constitute a bar to his candidacy for as long as
he meets the qualifications required for the office. Note, however, that the provision only pertains
to the duration of the penalty and its effect on the official's candidacy. Nothing therein states
that the administrative liability therefor is extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x.
xxxx
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period
of six (6) months for every administrative offense, nor shall said penalty be a bar to the
candidacy of the respondent so suspended as long as he meets the qualifications required for
the office.
Reading the 1987 Constitution together with the above-cited legal provisions now leads this
Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term
of office, or even another elective post. Election is not a mode of condoning an
administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction
to support the notion that an official elected for a different term is fully absolved of any
administrative liability arising from an offense done during a prior term. In this
jurisdiction, liability arising from administrative offenses may be condoned bv the
President in light of Section 19, Article VII of the 1987 Constitution which was interpreted
in Llamas v. Orbos293 to apply to administrative offenses:
The Constitution does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases. By the same token, if
executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of
the Constitution. Following petitioner's proposed interpretation, cases of impeachment are
automatically excluded inasmuch as the same do not necessarily involve criminal offenses.
In the same vein, We do not clearly see any valid and convincing , reason why the President
cannot grant executive clemency in administrative cases. It is Our considered view that if the
President can grant reprieves, commutations and pardons, and remit fines and forfeitures in
criminal cases, with much more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated
therein cannot anymore be invoked against an elective local official to hold him administratively
liable once he is re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation
since in the first place, an elective local official who is meted with the penalty of removal could
not be re-elected to an elective local position due to a direct disqualification from running for
such post. In similar regard, Section 52 (a) of the RRACCS imposes a penalty of perpetual
disqualification from holding public office as an accessory to the penalty of dismissal from
service.
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions
wherein the doctrine of condonation of administrative liability was supported by either a
constitutional or statutory provision stating, in effect, that an officer cannot be removed by a
misconduct committed during a previous term,294 or that the disqualification to hold the office
does not extend beyond the term in which the official's delinquency occurred.295 In one
case,296 the absence of a provision against the re-election of an officer removed - unlike Section
40 (b) of the LGC-was the justification behind condonation. In another case,297 it was deemed
that condonation through re-election was a policy under their constitution - which adoption in
this jurisdiction runs counter to our present Constitution's requirements on public accountability.
There was even one case where the doctrine of condonation was not adjudicated upon but only
invoked by a party as a ground;298 while in another case, which was not reported in full in the
official series, the crux of the disposition was that the evidence of a prior irregularity in no way
pertained to the charge at issue and therefore, was deemed to be incompetent.299 Hence, owing
to either their variance or inapplicability, none of these cases can be used as basis for the
continued adoption of the condonation doctrine under our existing laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the elective local official's prior term, and likewise
allows said official to still run for re-election This treatment is similar to People ex rel Bagshaw v.
Thompson300 and Montgomery v. Novell301 both cited in Pascual, wherein it was ruled that an
officer cannot be suspended for a misconduct committed during a prior term. However, as
previously stated, nothing in Section 66 (b) states that the elective local official's administrative
liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would
be depriving the electorate of their right to elect their officers if condonation were not to be
sanctioned. In political law, election pertains to the process by which a particular constituency
chooses an individual to hold a public office. In this jurisdiction, there is, again, no legal basis to
conclude that election automatically implies condonation. Neither is there any legal basis to say
that every democratic and republican state has an inherent regime of condonation. If
condonation of an elective official's administrative liability would perhaps, be allowed in this
jurisdiction, then the same should have been provided by law under our governing legal
mechanisms. May it be at the time of Pascual or at present, by no means has it been shown that
such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this
manifest absence, it cannot be said that the electorate's will has been abdicated.
Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are
assumed to have done so with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule.302 Besides, it is contrary to human
experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded
in secrecy, and concealed from the public. Misconduct committed by an elective official is
easily covered up, and is almost always unknown to the electorate when they cast their
votes.303 At a conceptual level, condonation presupposes that the condoner has actual
knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton304 decided by the New Jersey
Supreme Court:
Many of the cases holding that re-election of a public official prevents his removal for acts done
in a preceding term of office are reasoned out on the theory of condonation. We cannot
subscribe to that theory because condonation, implying as it does forgiveness, connotes
knowledge and in the absence of knowledge there can be no condonation. One cannot forgive
something of which one has no knowledge.
That being said, this Court simply finds no legal authority to sustain the condonation doctrine in
this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of
US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the
current legal regime. In consequence, it is high time for this Court to abandon the condonation
doctrine that originated from Pascual, and affirmed in the cases following the same, such
as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by
the CA.
It should, however, be clarified that this Court's abandonment of the condonation doctrine should
be prospective in application for the reason that judicial decisions applying or interpreting the
laws or the Constitution, until reversed, shall form part of the legal system of the
Philippines.305 Unto this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained in De Castro v.
Judicial Bar Council.306
Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.307
Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance
thereupon should be respected. The landmark case on this matter is People v.
Jabinal,308 wherein it was ruled:
[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof.
Later, in Spouses Benzonan v. CA,309 it was further elaborated:
[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form
part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that
"laws shall have no retroactive effect unless the contrary is provided." This is expressed in the
familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale
against retroactivity is easy to perceive. The retroactive application of a law usually divests rights
that have already become vested or impairs the obligations of contract and hence, is
unconstitutional.310ChanRoblesVirtualawlibrary
Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and
rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren
of legal anchorage was able to endure in our jurisprudence for a considerable length of time, this
Court, under a new membership, takes up the cudgels and now abandons the condonation
doctrine.
E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether or not
the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed injunctive writs.
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.311 It has also been held that "grave abuse
of discretion arises when a lower court or tribunal patently violates the Constitution, the
law or existing jurisprudence."312
As earlier established, records disclose that the CA's resolutions directing the issuance of the
assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To
recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based on
the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the
subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it cannot be concluded that the CA committed a grave
abuse of discretion based on its legal attribution above. Accordingly, the WPI against the
Ombudsman's preventive suspension order was correctly issued.
With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the
Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively liable and
imposed upon him the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative charges against him, the
said CA petition appears to have been mooted.313 As initially intimated, the preventive
suspension order is only an ancillary issuance that, at its core, serves the purpose of assisting
the Office of the Ombudsman in its investigation. It therefore has no more purpose - and
perforce, dissolves - upon the termination of the office's process of investigation in the instant
administrative case.
F. Exceptions to the mootness principle.
This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding
the validity of the preventive suspension order subject of this case does not preclude any of its
foregoing determinations, particularly, its abandonment of the condonation doctrine. As
explained in Belgica, '"the moot and academic principle' is not a magical formula that can
automatically dissuade the Court in resolving a case. The Court will decide cases, otherwise
moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of
the situation and the paramount public interest is involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review."314 All of these scenarios obtain
in this case:
First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it
were not to abandon the condonation doctrine now that its infirmities have become apparent. As
extensively discussed, the continued application of the condonation doctrine is simply
impermissible under the auspices of the present Constitution which explicitly mandates that
public office is a public trust and that public officials shall be accountable to the people at all
times.
Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a
defense of elective officials to escape administrative liability. It is the first time that the legal
intricacies of this doctrine have been brought to light; thus, this is a situation of exceptional
character which this Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of elective local
officials throughout the years, it is indubitable that paramount public interest is involved.
Third, the issue on the validity of the condonation doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar, and the public. The issue does not only involve
an in-depth exegesis of administrative law principles, but also puts to the forefront of legal
discourse the potency of the accountability provisions of the 1987 Constitution. The Court owes
it to the bench, the bar, and the public to explain how this controversial doctrine came about, and
now, its reasons for abandoning the same in view of its relevance on the parameters of public
office.
And fourth, the defense of condonation has been consistently invoked by elective local officials
against the administrative charges filed against them. To provide a sample size, the
Ombudsman has informed the Court that "for the period of July 2013 to December 2014 alone,
85 cases from the Luzon Office and 24 cases from the Central Office were dismissed on the
ground of condonation. Thus, in just one and a half years, over a hundred cases of alleged
misconduct - involving infractions such as dishonesty, oppression, gross neglect of duty and
grave misconduct - were placed beyond the reach of the Ombudsman's investigatory and
prosecutorial powers."315 Evidently, this fortifies the finding that the case is capable of repetition
and must therefore, not evade review.
In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to
uphold and defend the Constitution, revoke it notwithstanding supervening events that render the
subject of discussion moot.chanrobleslaw
V.
With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the
final issue on whether or not the CA's Resolution316 dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.
The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot
be the subject of a charge for indirect contempt317 because this action is criminal in nature and
the penalty therefor would result in her effective removal from office.318 However, a reading of
the aforesaid March 20, 2015 Resolution does not show that she has already been subjected to
contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the directive
for the Ombudsman to comment, the CA has not necessarily given due course to Binay,
Jr.'s contempt petition:
Without necessarily giving due course to the Petition for Contempt respondents [Hon.
Conchita Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior and
Local Government] are hereby DIRECTED to file Comment on the Petition/Amended and
Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an inextendible period of
three (3) days from receipt hereof. (Emphasis and underscoring
supplied)ChanRoblesVirtualawlibrary
Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she
may properly raise her objections to the contempt proceedings by virtue of her being an
impeachable officer, the CA, in the exercise of its sound judicial discretion, may still opt not to
give due course to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply put,
absent any indication that the contempt petition has been given due course by the CA, it would
then be premature for this Court to rule on the issue. The submission of the Ombudsman on this
score is perforce denied.
WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the
Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is
declared UNCONSTITUTIONAL, while the policy against the issuance of provisional injunctive
writs by courts other than the Supreme Court to enjoin an investigation conducted by the Office
of the Ombudsman under the first paragraph of the said provision is DECLARED ineffective until
the Court adopts the same as part of the rules of procedure through an administrative circular
duly issued therefor;cralawlawlibrary
(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in
effect;cralawlawlibrary
(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding Binay,
Jr. administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-
0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and
OMB-C-A-15-0063; and
(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA
is DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost
dispatch.
SO ORDERED.c
IMPEACHMENT
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO,
INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-
ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-
intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN,
MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-
HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO
RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS,
RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR
PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR.,
JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO,
GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT,
ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO,
DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL
ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN
CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO
AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE
HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,
RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR.,
JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY
EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE
ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA,
EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER
QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO,
MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU
RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED
BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS
CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING
PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF
THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN
S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN
B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES
AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE
PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES
WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT
CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION
OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS
OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO
G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.
MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY
OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY
ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE
LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L.
JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON,
AS SENATE PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional powers
where the Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions – whether the filing of the second impeachment complaint against
Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year
bar provided in the Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a
political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary
nor legally permissible. Both its resolution and protection of the public interest lie in adherence
to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive
or judicial branches of government by no means prescribes for absolute autonomy in the
discharge by each of that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must be
given effect without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but
not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out
the purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between
these two Congresses' House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES 12TH CONGRESS NEW RULES
RULE II RULE V
BAR AGAINST INITIATION OF
 INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. – Impeachment shall
be initiated only by a verified
complaint for impeachment filed by
any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement by
any Member thereof or by a verified
complaint or resolution of
impeachment filed by at least one-
third (1/3) of all the Members of the
House.
RULE V
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. – Impeachment
Proceedings Deemed Initiated. –
In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a
verified complaint that is endorsed
by a Member of the House through
a resolution of endorsement
against an impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be,
is sufficient in substance, or on the
date the House votes to overturn
or affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified
complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
Section 17. Bar Against
Initiation Of Impeachment
Proceedings. – Within a period of
BAR AGAINST IMPEACHMENT one (1) year from the date
impeachment proceedings are
Section 14. Scope of Bar. – No deemed initiated as provided in
impeachment proceedings shall be Section 16 hereof, no
initiated against the same official impeachment proceedings, as
more than once within the period of such, can be initiated against the
one (1) year. same official. (Italics in the original;
emphasis and underscoring
supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by
Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures
by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice
on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being
insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to
the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by
Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This
second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of
Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in
the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5)
of the Constitution, to return the second impeachment complaint and/or strike it off the records of
the House of Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a
writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition
for Injunction that the second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding
therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors
and agents to desist from conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing
of the second impeachment complaint involves paramount public interest and pray that Sections
16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for
Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray
for the issuance of a writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and that this Court
declare as unconstitutional the second impeachment complaint and the acts of respondent
House of Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as
an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that
as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to inculcate
in the minds of their students," pray that the House of Representatives be enjoined from
endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays
in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction"
that the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays
in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the
impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to the
Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of
the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of
the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was
put forth that the second impeachment complaint be formally transmitted to the Senate, but it
was not carried because the House of Representatives adjourned for lack of quorum,19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at
10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this Court
called on petitioners and respondents to maintain the status quo, enjoining all the parties and
others acting for and in their behalf to refrain from committing acts that would render the petitions
moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C.
De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the
House of Representatives, which is an independent and co-equal branch of government under
the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate
them with the earlier consolidated petitions; (b) require respondents to file their comment not
later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November
5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute
itself as an impeachment court commences only upon its receipt of the Articles of Impeachment,
which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the
proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put
Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the
petitions as the matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II
Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3,
2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke
it; on what issues and at what time; and whether it should be exercised by this Court at
this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of
Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of
the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise
of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining.
These matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating
power of the courts, not to speak of its historical origin and development there, has
been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for
the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of judicial
review under the Constitution. Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in
this manner, the judiciary does not pass upon questions of wisdom, justice or expediency
of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial
power itself, which is "the power of the court to settle actual controversies involving rights which
are legally demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence
for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme
law of the land, the constitution itself is first mentioned; and not the laws of the United
 States generally, but those only which shall be made in pursuance of the constitution,
have that rank.
Thus, the particular phraseology of the constitution of the United States confirms
and strengthens the principle, supposed to be essential to all written constitutions,
that a law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28 (Italics in the original; emphasis
supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral
component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government.
It obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure coordination in the
workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial
review is the chief, indeed the only, medium of participation – or instrument of intervention – of
the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored
in the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience
during martial law. As a matter of fact, it has some antecedents in the past, but the role
of the judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the release
of political detainees, and other matters related to the operation and effect of martial law
failed because the government set up the defense of political question. And the Supreme
Court said: "Well, since it is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment upon the rights of
 the people, but it, in effect, encouraged further violations thereof during the
martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction, or
so capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.35 (Italics in the original; emphasis and
underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to be assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document, it being essential for
the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus these are the cases where the
need for construction is reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to effect that
purpose.39 (Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame
Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the organic
law and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the Constitution were guided mainly
by the explanation offered by the framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a
provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of
the Constitution is to be separated from all the others, to be considered alone, but
that all the provisions bearing upon a particular subject are to be brought into
view and to be so interpreted as to effectuate the great purposes of the
instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and
one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
 In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning
is clear. Debates in the constitutional convention "are of value as showing the views of
the individual members, and as indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its
face." The proper interpretation therefore depends more on how it was understood
by the people adopting it than in the framers's understanding thereof.46 (Emphasis
and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential
application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system
of checks and balances, under which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning relief.51 Respondents likewise
point to deliberations on the US Constitution to show the intent to isolate judicial power of review
in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senate's "sole
power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check and
restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case
of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power but also a duty,
and it was given an expanded definition to include the power to correct any grave abuse of
discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution
with respect to the power of the House of Representatives over impeachment proceedings.
While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to impeach, and the one
year bar on the impeachment of one and the same official.
Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the perils
of judicial willfulness and pride."56
But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57 "judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support
of the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative
power is vested exclusively in Congress, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled
that confirmation by the National Assembly of the election of any member, irrespective of
whether his election is contested, is not essential before such member-elect may discharge the
duties and enjoy the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to it
by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the governmental
act that is being challenged. The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental importance,71 and that procedural
matters are subordinate to the need to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the
U.P. College of Law is of the same opinion, citing transcendental importance and the well-
entrenched rule exception that, when the real party in interest is unable to vindicate his rights by
seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot
himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an
action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by
official action taken, but by concerned citizens, taxpayers or voters who actually sue in
the public interest. Hence the question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he is "the party
who would be benefited or injured by the judgment, or the 'party entitled to the avails of
the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
and members of the bar and of the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves
the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of
personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that there
is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove that
he has sufficient interest in preventing the illegal expenditure of money raised by taxation and
that he would sustain a direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest common to all members of the
public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial
of the Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83
While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the
issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court
to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members
of the class whether or not they were before the court.89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionally allege standing as citizens and taxpayers, however, their petition will
stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive
determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive:
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and
specific interest in raising the questions being raised.90 Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public.91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence of such interest, it
not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to
allege any interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a 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. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise
the same issues and the same standing, and no objection on the part of petitioners Candelaria,
et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to
Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging
that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been
complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment complaint against the Chief
Justice is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et
al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and to fully ventilate all substantial
issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier
stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of public
moneys, nowhere in their Petition do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional protection against abuses of
legislative power," or that there is a misapplication of such funds by respondent
COMELEC, or that public money is being deflected to any improper purpose. Neither do
petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected to
any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to
clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture."96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged in
an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been filed
with the House of Representatives and the 2001 Rules have already been already promulgated
and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House and
Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when
the Articles of Impeachment are presented on a motion to transmit to the same to the Senate.
The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief
Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with definitiveness
on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as
said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the
Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government."
It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even in
the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of whether
the 1973 Constitution was ratified, hence, in force, this Court shunted the political question
doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political
question, it being a question decided by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that
the judiciary is the weakest among the three major branches of the service. Since the legislature
holds the purse and the executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to conscience which, after all,
reflects the will of God, and is the most powerful of all other powers without exception. x x x And
so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on
the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the
release of political detainees, and other matters related to the operation and effect
of martial law failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political, we have no authority to
pass upon it." The Committee on the Judiciary feels that this was not a proper
solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations
thereof during the martial law regime. I am sure the members of the Bar are familiar
with this situation. But for the benefit of the Members of the Commission who are not
lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on
the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September 21. So that when martial
law was announced on September 22, the media hardly published anything about it. In
fact, the media could not publish any story not only because our main writers were
already incarcerated, but also because those who succeeded them in their jobs were
under mortal threat of being the object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the fundamentals of the Constitution.
I forgot to say that upon the proclamation of martial law, some delegates to that 1971
Constitutional Convention, dozens of them, were picked up. One of them was our very
own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was
taken over by representatives of Malacañang. In 17 days, they finished what the
delegates to the 1971 Constitutional Convention had been unable to accomplish for
about 14 months. The draft of the 1973 Constitution was presented to the President
around December 1, 1972, whereupon the President issued a decree calling a plebiscite
which suspended the operation of some provisions in the martial law decree which
prohibited discussions, much less public discussions of certain matters of public concern.
The purpose was presumably to allow a free discussion on the draft of the Constitution
on which a plebiscite was to be held sometime in January 1973. If I may use a word
famous by our colleague, Commissioner Ople, during the interregnum, however, the draft
of the Constitution was analyzed and criticized with such a telling effect that Malacañang
felt the danger of its approval. So, the President suspended indefinitely the holding of the
plebiscite and announced that he would consult the people in a referendum to be held
from January 10 to January 15. But the questions to be submitted in the referendum
were not announced until the eve of its scheduled beginning, under the supposed
supervision not of the Commission on Elections, but of what was then designated as
"citizens assemblies or barangays." Thus the barangays came into existence. The
questions to be propounded were released with proposed answers thereto, suggesting
that it was unnecessary to hold a plebiscite because the answers given in the
referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion
was filed with the Supreme Court praying that the holding of the referendum be
suspended. When the motion was being heard before the Supreme Court, the Minister of
Justice delivered to the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of the votes cast in
the referendum favored the Constitution. Immediately after the departure of the Minister
of Justice, I proceeded to the session room where the case was being heard. I then
informed the Court and the parties the presidential proclamation declaring that the 1973
Constitution had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void.
The main defense put up by the government was that the issue was a political question
and that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members
of the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference
between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of "political question" was
set up. There have been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was
clearly justiciable.
xxx
 x x x When your Committee on the Judiciary began to perform its functions, it faced the During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
following questions: What is judicial power? What is a political question? clarified the concept of judicial power, thus:

The Supreme Court, like all other courts, has one main function: to settle actual MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is
controversies involving conflicts of rights which are demandable and enforceable. There not vested in the Supreme Court alone but also in other lower courts as may be
are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a created by law.
decided case, a husband complained that his wife was unwilling to perform her duties as
a wife. The Court said: "We can tell your wife what her duties as such are and that she is MR. CONCEPCION. Yes.
bound to comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but they are so MR. NOLLEDO. And so, is this only an example?
personal that to enforce them by actual compulsion would be highly derogatory to human
dignity."
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
This is why the first part of the second paragraph of Section I provides that:
MR. NOLLEDO. Because of the expression "judicial power"?
Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a abused its authority to the extent of lacking jurisdiction or excess of jurisdiction,
presidential system of government, the Supreme Court has, also another that is not a political question. Therefore, the court has the duty to decide.
important function. The powers of government are generally considered divided
into three branches: the Legislative, the Executive and the Judiciary. Each one is
xxx
supreme within its own sphere and independent of the others. Because of that
supremacy power to determine whether a given law is valid or not is vested in
courts of justice. FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the On another point, is it the intention of Section 1 to do away with the political
judiciary is the final arbiter on the question whether or not a branch of government question doctrine?
or any of its officials has acted without jurisdiction or in excess of jurisdiction, or
so capriciously as to constitute an abuse of discretion amounting to excess of MR. CONCEPCION. No.
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature. FR. BERNAS. It is not.

This is the background of paragraph 2 of Section 1, which means that the courts MR. CONCEPCION. No, because whenever there is an abuse of discretion,
cannot hereafter evade the duty to settle matters of this nature, by claiming that amounting to a lack of jurisdiction. . .
such matters constitute a political question.
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away
I have made these extended remarks to the end that the Commissioners may have an with the political question doctrine.
initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis
supplied) MR. CONCEPCION. No, certainly not.
 When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the
reason being that the definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the principle in
appropriate cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker
v. Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion. These
standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
 I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of
the Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI
of the Constitution.
The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require
this Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a
governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional
question and decide a law to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that course will be adopted
and the constitutional question will be left for consideration until a case arises in
which a decision upon such question will be unavoidable.116 [Emphasis and
underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into
such a question are first satisfied. Thus, there must be an actual case or controversy
involving a conflict of legal rights susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper party, and the resolution of
the question is unavoidably necessary to the decision of the case
itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and
is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome
of this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon
of adjudication that "the court should not form a rule of constitutional law broader than is required
by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for
a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c)
a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on
the independence of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this
Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry
is too far removed from the issue of the validity of the second impeachment complaint. Moreover,
the resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional
law touching on the separate and distinct matter of legislative inquiries in general, which would
thus be broader than is required by the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised other grounds in support of their
petition which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in aid
of legislation in accordance with its duly published rules of procedure" and that "the rights
of persons appearing in or affected by such inquiries shall be respected." It follows then
that the right rights of persons under the Bill of Rights must be respected, including the
right to due process and the right not be compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro,
Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4),
Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at
least one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution
of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the
afore-mentioned section in that the "verified complaint or resolution of impeachment" was not
filed "by at least one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have
verified the same merely as a "Resolution of Endorsement." Intervenors point to the "Verification"
of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the
abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely
endorsed, by at least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on Justice under Section 3(2),
Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by
the Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the
efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of
the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute
the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of impeachment.
Again, this Court reiterates that the power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of
the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2)
of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take
cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it
has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office, the
public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit
to pass upon the merits of their varied contentions. For this reason, they expect [him] to be
fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power
and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his]
office."130
The duty to exercise the power of adjudication regardless of interest had already been settled in
the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all
of them were interested parties to said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members whose disqualification was not
sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn of
the participation of its entire membership of Senators.
To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
which is in the highest public interest as evidenced by its being expressly imposed by no
less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose disqualification may be sought.
Litigants in such situations must simply place their trust and hopes of vindication in the
fairness and sense of justice of the Members of the Tribunal. Justices and Senators,
singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral
Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial judgment. What
we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members alone the power of
valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them,
is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And
if that judge is the one designated by the Constitution to exercise the jurisdiction of his
court, as is the case with the Justices of this Court, the deprivation of his or their judicial
power is equivalent to the deprivation of the judicial power of the court itself. It affects the
very heart of judicial independence. The proposed mass disqualification, if sanctioned
and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of
Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only in
the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one who lacks a personal or
property right. Thus, the challenge by a public official interested only in the performance
of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed
the dismissal of a suit brought by a citizen who sought to have the Nineteenth
Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the
federal Maternity Act was not entertained although made by the Commonwealth on
behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible by which the question
may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the
case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the
statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing
and humiliating and risk serious political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano
echoes this argument by alleging that failure of this Court to enforce its Resolution against
Congress would result in the diminution of its judicial authority and erode public confidence and
faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded
as settled until the Supreme Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also political consequences.
Those political consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently,
failure to act explicitly, one way or the other, itself constitutes a decision for the
respondent and validation, or at least quasi-validation, follows." 138
139
Thus, in Javellana v. Executive Secretary where this Court was split and "in the end there
were not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-
existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches of
the government would behave in a lawless manner and not do their duty under the law to uphold
the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the
branches of government will behave in a precipitate manner and risk social upheaval, violence,
chaos and anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People
v. Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam unrestricted
beyond boundaries within which they are required by law to exercise the duties of their
office, then law becomes meaningless. A government of laws, not of men excludes the
exercise of broad discretionary powers by those acting under its authority. Under this
system, [public officers] are guided by the Rule of Law, and ought "to protect and enforce
it without fear or favor," resist encroachments by governments, political parties, or even
the interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16
and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of
our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3
(1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file"
because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished
in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of
Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3)
by at least 1/3 of all the members of the House. Respondent House of Representatives
concludes that the one year bar prohibiting the initiation of impeachment proceedings against the
same officials could not have been violated as the impeachment complaint against Chief Justice
Davide and seven Associate Justices had not been initiated as the House of Representatives,
acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3)
and (5) of the Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to
commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts
consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation
is the filing of the complaint and its referral to the Committee on Justice.
 Finally, it should be noted that the House Rule relied upon by Representatives
Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the
Justice Committee votes in favor of impeachment or when the House reverses a contrary
vote of the Committee. Note that the Rule does not say "impeachment proceedings" are
initiated but rather are "deemed initiated." The language is recognition that initiation
happened earlier, but by legal fiction there is an attempt to postpone it to a time after
actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the
law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many proposals
and, I think, these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker committee action,
calendaring of report, voting on the report, transmittal referral to the Senate, trial
and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation
starts with the filing of the complaint. And what is actually done on the floor is that
the committee resolution containing the Articles of Impeachment is the one
approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution. It
is not the body which initiates it. It only approves or disapproves the
resolution. So, on that score, probably the Committee on Style could help in rearranging
these words because we have to be very technical about this. I have been bringing with
me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules
are with me. The proceedings on the case of Richard Nixon are with me. I have
submitted my proposal, but the Committee has already decided. Nevertheless, I just
want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or
to override its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the
House of Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting
the phrase "to initiate impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all that the initiation of
impeachment proceedings starts with the filing of the complaint, and the vote of one-third
of the House in a resolution of impeachment does not initiate the impeachment
proceedings which was already initiated by the filing of a verified complaint under Section
3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used
in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object
in the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that the House, by a vote
of one-third of all its members, can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No other body can do it. However,
before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the House and consists
of several steps: (1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects
or upholds the complaint, the resolution must be forwarded to the House for further processing;
and (4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote
of one-third of all the members. If at least one third of all the Members upholds the complaint,
Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the
House "initiates an impeachment case." It is at this point that an impeachable public official is
successfully impeached. That is, he or she is successfully charged with an impeachment "case"
before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for
action. This is the initiating step which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not found
in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action.
By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people,
both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words as they understand it
and not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is contrary
to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of
the impeachment complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral or endorsement of
the impeachment complaint to the House Committee on Justice or, by the filing by at least one-
third of the members of the House of Representatives with the Secretary General of the House,
the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has
been initiated, another impeachment complaint may not be filed against the same official within a
one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment
proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that
the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself
affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment
by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of
Article XI since the rules give the term "initiate" a meaning different meaning from filing and
referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning because
of the latter's balanced perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission – Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose
of this section." Hence, these rules cannot contravene the very purpose of the Constitution which
said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly
provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all matters of method
are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as
he stressed that in the Philippine setting there is even more reason for courts to inquire into the
validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power
if we assume jurisdiction over he case at bar. Even in the United States, the principle
of separation of power is no longer an impregnable impediment against the interposition
of judicial power on cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view
the issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the
rules of its proceedings." It appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be
noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the
presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as
to the validity of this rule, and not what methods the Speaker may of his own motion
resort to for determining the presence of a quorum, nor what matters the Speaker or
clerk may of their own volition place upon the journal. Neither do the advantages or
disadvantages, the wisdom or folly, of such a rule present any matters for judicial
consideration. With the courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights, and there should be
a reasonable relation between the mode or method of proceedings established by
the rule and the result which is sought to be attained. But within these limitations all
matters of method are open to the determination of the House, and it is no impeachment
of the rule to say that some other way would be better, more accurate, or even more just.
It is no objection to the validity of a rule that a different one has been prescribed and in
force for a length of time. The power to make rules is not one which once exercised is
exhausted. It is a continuous power, always subject to be exercised by the House, and
within the limitations suggested, absolute and beyond the challenge of any other body or
tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by
the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable
relationship with the result sought to be attained. By examining Rule XV, the Court did
not allow its jurisdiction to be defeated by the mere invocation of the principle of
separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to
categorically reject the political question defense when its interposition will cover
up abuse of power. For section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It
was not also xeroxed from the US Constitution or any foreign state constitution.
The CONCOM granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were
shielded from judicial scrutiny by the misuse of the political question doctrine. Led
by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and
sharpened the checking powers of the judiciary vis-à-vis the Executive and the
Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere
power which it can decline to exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down any act of a branch
or instrumentality of government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court against the other branches
of government despite their more democratic character, the President and the legislators
being elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in government. x x x
xxx
 In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially determining what
it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is
mandated to approach constitutional violations not by finding out what it should
not do but what it must do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of
our power to review violations of the rules of the House. We will not be true to our trust
as the last bulwark against government abuses if we refuse to exercise this new
power or if we wield it with timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly emboldened other branches of
government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed
the view of former Senator Salonga that this novel provision stretching the latitude of
judicial power is distinctly Filipino and its interpretation should not be depreciated by
undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the
lessons of our own history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing more.
It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment complaint
and referral to the House Committee on Justice, the initial action taken thereon, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in
the foregoing manner, another may not be filed against the same official within a one year period
following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to
be the correct position or view on the issues involved. Passions had ran high as demonstrators,
whether for or against the impeachment of the Chief Justice, took to the streets armed with their
familiar slogans and chants to air their voice on the matter. Various sectors of society - from the
business, retired military, to the academe and denominations of faith – offered suggestions for a
return to a state of normalcy in the official relations of the governmental branches affected to
obviate any perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may have
a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full of
all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial
review over an issue whose resolution precisely called for the construction or interpretation of a
provision of the fundamental law of the land. What lies in here is an issue of a genuine
constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only
the main issue of whether the impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about
assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative of their own powers to
bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations
or speculations could be made to it, so long as it rendered judgment according to the law and the
facts. Why can it not now be trusted to wield judicial power in these petitions just because it is
the highest ranking magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official act as tested by
the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of
its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station in
life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted
to no other than the Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this Court to have found
answers in our bedrock of legal principles, it is equally important that it went through this crucible
of a democratic process, if only to discover that it can resolve differences without the use of force
and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment
Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October
23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
ABOLITION OF OFFICE
*** Canonizado v. Aguirre ***
CONVICTION OF CRIME
G.R. No. 75025 September 14, 1993
VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER,
LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR,
TELECOM REGIONAL OFFICE NO. IV, respondents.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.
BELLOSILLO, J.:
Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of
respondent Commission on Audit (COA) denying his claim for payment of back wages, after he
was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary
remedy of mandamus against public respondents to enforce his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of
Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from
the service on the ground of dishonesty in accordance with the decision of the then Ministry of
Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several
telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon,
telecom lines. Petitioner did not appeal from the decision.
Based on the same facts obtaining in the administrative action, a criminal case for qualified theft
was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of
Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the
offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's
request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner
pleaded to the President of the Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation
and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant
Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted
executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1
April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th
Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him
did not provide for the payment of back salaries and that he has not been reinstated in the
service.
It appears that petitioner was recalled to the service on 12 March 1984 but the records do not
show whether petitioner's reinstatement was to the same position of Supervising Lineman.1
Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the
date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied
in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the
executive clemency was silent on the payment of back wages and that he had not rendered
service during the period of his claim.
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President.
On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the
President, denied the appeal "due to legal and constitutional constraint,"2 holding that this Court
is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA,
citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987
Constitution).
Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of
back wages after having been reinstated pursuant to the grant of executive clemency.
In his comment to the petition, the Solicitor General recommends that the petition be given due
course and the petitioner be awarded back wages to be determined in the light of existing laws
and jurisprudence. The Solicitor General submits that the award is implicit in the grant of
executive clemency, the ultimate objective of which is to accord full justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for the following reasons: (a)
petitioner's acquittal in the criminal case did not necessarily free him from administrative liability;
(b) petitioners unexplained failure to appeal the decision in the administrative case was
tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency
was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of
back wages; (d) the award of back wages is allowed only if the respondent is exonerated from
the administrative charge that his suspension or dismissal is declared illegal or unjustified by the
court; and, (e) petitioner did not render any service during the period before his reinstatement,
hence, he is not entitled to back wages based on the "no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for, the pardoning power to be
exercised as an act of grace and humanity, in proper cases. Without such a power of clemency,
to be exercised by some department or functionary of a government, a country would be most
imperfect and deficient in its political morality and in that attribute of Deity whose judgments are
always tempered with money.3
Our Constitution reposes in the President the power and the exclusive prerogative to extend
executive clemency under the following circumstances:
Except in cases of impeachment or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority
of all the Members of the Congress.4
From among the different acts of executive clemency spelled out above, the clemency granted to
petitioner in the instant case partakes of the nature of an executive pardon. A reading of
Resolution No. 1800 partly quoted hereunder is enlightening:
In a 3rd Indorsement dated September 5, 1980, the Director of
Telecommunications interposed no objection to the petition, while the Minister of
Transportation and Communications, in his 4th Indorsement dated November 17,
1980, favorably recommended the grant of executive clemency to petitioner for
the reason that "while it is a rule that an administrative case is separate and
distinct from a criminal case and an acquittal in the latter case dos not ipso
facto result in the exoneration in the former case, yet an exception could arise if
the basis for the acquittal was the innocence of the accused as in the case of
petitioner Garcia.
Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the
Civil service Commission recommends the grant of executive clemency to
petitioner in view of the findings of the court that —
instead of coming forward to the defense of the accused who
actually was authorized to uproot or recover the poles in question
and of commending the latter for his high sense of responsibility
in preventing losses to the government, said high officials had
even the temerity to disown and deny the authority they gave to
the accused resulting in his separation from the service and
having him all alone in defending himself against the accusation
of the very government he tried to protect.
After a careful study, this Office is inclined to grant executive clemency to
petitioner in the light of this decision of the court acquitting him of the crime of
qualified theft which was based on the same acts obtaining in Administrative
Case No. 975 against him, coupled with the favorable recommendation of the
Minister of Transportation and Communications and the Civil Service
Commission.
In view of the foregoing, petitioner Vicente Garcia is hereby granted executive
clemency.5
Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is
granted. In Monsanto v. Factoran,6 we have firmly established the general rule that while a
pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of
the law the offender is as innocent as though he never committed the offense, it does not
operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and
not forgetfulness . It does not erase the fact of the commission of the crime and the conviction
thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to
him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring
back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his
eligibility for appointment to public office which was forfeited by reason of the conviction of the
offense. But since pardon does not generally result in automatic reinstatement because the
offender has to apply for reappointment, he is not entitled to back wages.
But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this
innocence and makes him a new man and as innocent; as if he had not been found guilty of the
offense charged.7 When a person is given pardon because he did not truly commit the offense,
the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring
to him his clean name, good reputation and unstained character prior to the finding of guilt.
In the case at bar, petitioner was found administratively liable for dishonesty and consequently
dismissed from the service. However, he was later acquitted by the trial court of the charge of
qualified theft based on the very same acts for which he was dismissed. The acquittal of
petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the
fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of
the charge, the trial court commended petitioner for his concern and dedication as a public
servant. Verily, petitioner's innocence is the primary reason behind the grant of executive
clemency to him, bolstered by the favorable recommendations for his reinstatement by the
Ministry of Transportation and Communications and the Civil Service Commission.
The bestowal of executive clemency on petitioner in effect completely obliterated the adverse
effects of the administrative decision which found him guilty of dishonesty and ordered his
separation from the service. This can be inferred from the executive clemency itself exculpating
petitioner from the administrative charge and thereby directing his reinstatement, which is
rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply
to be reinstated to his former employment; he is restored to his office ipso facto upon the
issuance of the clemency.
Petitioner's automatic reinstatement to the government service entitles him to back wages.8 This
is meant to afford relief to petitioner who is innocent from the start and to make reparation for
what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would
defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover,
the right to back wages is afforded to those with have been illegally dismissed and were thus
ordered reinstated or to those otherwise acquitted of the charges against them.9 There is no
doubt that petitioner's case falls within the situations aforementioned to entitle him to back
wages.
of executive clemency was effected not because of lack of sufficient proof of his commission of
the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity
and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation
and, above all, injustice caused to him and his family by his unfounded dismissal. This Court
cannot help surmising the painful stigma that must have caused petitioner, the incursion on his
dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse,
a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1
April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The
payment shall be without deduction or qualification.
WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit
dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public
respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land
Transportation and Communications, the Regional Director of Telecom Regional Office No. IV,
or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back
salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.

Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal SO ORDERED.
conviction that carried with it forfeiture of the right to hold public office, but is the direct
consequence of an administrative decision of a branch of the Executive Department over which
the President, as its head, has the power of control. The President's control has been defined to
mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to the judgment of the former for the latter." 10 In
pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of
control and set aside the decision of the Ministry of Transportation and Communications. The RECALL
clemency nullified the dismissal of petitioner and relieved him from administrative liability. The
separation of the petitioner from the service being null and void, he is thus entitled to back
wages.
G.R. No. 126576 March 5, 1997
After having been declared innocent of the crime of qualified theft, which also served as basis for
the administrative charge, petitioner should not be considered to have left his office for all legal MAYOR RICARDO M. ANGOBUNG, petitioner,
purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the vs.
office held, including back wages. 11 COMMISSION ON ELECTIONS EN BANC, and ATTY. AURORA S. DE ALBAN, respondents.

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an
illegally dismissed government employee who has been ordered reinstated. 12 The cases
heretofore decided by this Court show that petitioners therein were employees of local
governments who were removed from office by their local officials. The reasons given for their
removal were abolition of office or position, reduction of work force, or lack of funds on the part of
HERMOSISIMA, JR., J.:
the local governments concerned, which reasons were found by this Court to be either devoid of
factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and
justified. In contrast, the case before us is different, involving as it does circumstances that impel Before us on certiorari is a petition seeking to annul and set aside Resolution No. 96-29511 dated
us to deviate from the general rule previously laid down on the recovery of back wages for five October 15, 1996 issued by public respondent Commission on Elections (COMELEC) which (1)
(15) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant approved the Petition for Recall filed and signed by only one registered voter — herein private
respondent Ma. Aurora Siccuan de Alban, against petitioner — incumbent Mayor Ricardo
Angobung; (2) set the further signing of said petition by the rest of the registered voters of
Tumauini, Isabela on November 9, 1996; and (3) in case the said petition is signed by at least
25% of the total number of registered votes in Tumauini, Isabela, scheduled the recall election
on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining Order2 enjoining public
respondent COMELEC from implementing and enforcing Resolution No. 96-2951.
The facts of this case are not disputed.
Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela in the local
elections of 1995. He garnered 55% of all the votes cast. Private respondent de Alban was also
a candidate in said elections.
Sometime in early September, 1996, private respondent filed with the Local Election Registrar of
Tumauini, Isabela, a Petition for Recall3 against petitioner. On September 12, 1996, petitioner
received a copy of this petition. Subsequently said petition was forwarded to the Regional Office
in Tuguegarao, Cagayan and then to the main office of COMELEC in Manila, for approval.
Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson submitted to the
COMELEC En Banc, a Memorandum4 dated October 8, 1996 recommending approval of the
petition for recall filed by private respondent and its signing by other qualified voters in order to
garner at least 25% of the total number of registered voters as required by Section 69(d) of the
Local Government Code of 1991.
In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson, the
COMELEC en banc issued the herein assailed Resolution No. 96-2951.
Petitioner now attacks the aforementioned resolution as being unconstitutional and therefore
invalid, on two main grounds: (1) that the resolution approved the Petition for Recall albeit same
was signed by just one person in violation of the statutory 25% minimum requirement as to the
number of signatures supporting any petition for recall; and (2) that the resolution scheduled the
recall election within one (1) year from the May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent has sought the lifting of the Temporary
Restraining Order issued last October 25, 1996 on the twin grounds (1) that the issue of the one-
year bar on recall elections has been resolved in the case of Paras v. COMELEC5, promulgated
on November 4, 1996; and (2) that the procedure prescribed by Resolution No. 96-2951
involving petition signing upon initiation of even just one person, is no different from that
provided for in COMELEC Resolution No. 2272 which was upheld as constitutional in the 1991
cases of Sanchez, et al. v. COMELEC6 and Evardone v. COMELEC7.
Private respondent is correct in saying that in the light of our pronouncement in Paras
v. COMELEC8, the recall election scheduled on December 2, 1996 in the instant case cannot be
said to be barred by the May 12, 1997 Barangay Elections. In construing the meaning of the
term, "regular local election" in Section 74 of the Local Government Code of 1991 which
provides that "no recall shall take place within one (1) year . . . immediately preceding a regular
local election," we ruled that for the time bar to apply, the approaching regular local election must
be one where the position of the official to be recalled, is to be actually contested and filled by
the electorate. Thus, in the instant case where the time bar is being invoked by petitioner mayor
in view of the approaching Barangay Elections in May 1997, there can be no application of the
one year bar, hence no invalidity may be ascribed to Resolution No. 96-2951 on this ground.
We, however, find petitioner's second ground to be impressed with merit.
Before the enactment of the 1991 Local Government Code, the recall of public officials voted for
in popular elections, was governed by Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise
known as the Local Government Code of 1983. Pursuant to Section 59 thereof, which states that
"the Commission on Elections shall conduct and supervise the process of and election on recall .
. . and, in pursuance thereof, promulgate the necessary rules and regulations," the COMELEC
promulgated Resolution No. 2272 Sections 4 and 5 of which provide as follows:
Sec. 4. How instituted. — The recall of an elective provincial, city or municipal
official shall be commenced by the filing of a duly verified notice of recall
containing the address and precinct number of the voter filing the notice, and the
name of the official sought to be recalled, his position, and the ground(s) for the
recall. Each notice shall refer to only one official.
The notice shall be filed in triplicate with the local Election Registrar if the recall
involves a city or municipal official, or with the Provincial Election Supervisor if it
involves a provincial official, one copy of which shall be posted upon receipt
thereof on the bulletin board in the city/municipal hall.
If the recall involves a provincial official, two additional copies of the notice shall
also be furnished by the voter filing the notice to the Election Registrar of each
city and municipality in the province, one copy of which shall be posted upon
receipt thereof on the bulletin board in the city/municipal hall.
In every case, the voter filing the notice of recall shall furnish a copy thereof to
the official sought to be recalled, the Commission on Elections in Manila and the
Election Records and Statistics Department of the Commission.
Sec. 5. Schedule and place of signing of the petition. — The Election Registrar
shall submit to the Commission on Elections, not later than ten days from filing of
 the notice of recall, the schedule of the signing of the petition to recall for
approval and funding . . .9
In the case of Sanchez v. COMELEC 10, petitioners therein contended that the aforegoing
"Resolution No. 2272 is unconstitutional there being no legislative enactment yet on [the]
mechanism of recall as mandated under Sec. 3, Art. X of the Constitution". 11 It is true, as private
respondent asseverates, that we upheld the constitutionality of Resolution No. 2272, but not
because we found nothing constitutionally infirm about the procedure of allowing the initiatory
recall petition to be filed by only one person. The issue in Sanchez was not this questioned
procedure but the legal basis for the exercise by the COMELEC of its rule-making power in the
alleged absence of a grant of such power by an enabling statute on recall. Thus we ruled:
While it is true that Sec. 3, Art. X of the Constitution mandates the Congress to
enact a local government code providing among others for an effective
mechanism of recall, nothing in said provision could be inferred the repeal of BP
337, the local government code existing prior to the adoption of the 1987
Constitution. Sec. 3, Art. X of the Constitution merely provides that the local
government code to be enacted by Congress shall be "more responsive" than the
one existing at present. Until such time that a more responsive and effective local
government code is enacted, the present code shall remain in full force and
effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws, decrees, executive
orders, proclamations, letters of instructions and other executive issuances not
inconsistent with this Constitution shall remain operative until amended,
repealed, or revoked.
Considering that the present local government code (BP 337) is still in effect,
respondent COMELEC's promulgation of Resolution No. 2272 is therefore valid
and constitutional, the same having been issued pursuant to Sec. 59 of BP 337.
It reads:
Sec. 59. Supervision by the Commission on Elections. — The Commission on
Elections shall conduct and supervise the process of and election on recall . . .
and, in pursuance thereof, promulgate the necessary rules and regulations. 12
We reiterated the foregoing ruling in the case of Evardone v.
COMELEC 13 in this wise:
Article XVIII, Section 3 of the 1987 Constitution expressly provides that all
existing laws not inconsistent with the 1987 Constitution shall remain operative,
until amended, repealed or revoked. Republic Act No. 7160 providing for the
Local Government Code of 1991, approved by the President on 10 October
1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of
said Act. But the Local Government Code of 1991 will take effect only on 1
January 1992 and therefore the old Local Government Code (B.P. Blg. 337) is
still the law applicable to the present case.
xxx xxx xxx
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for
recall of local elective officials. Section 59 expressly authorizes the respondent
COMELEC to conduct and supervise the process of and election on recall and in
the exercise of such powers, promulgate the necessary rules and regulations. . . .
Thus, pursuant to the rule-making power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent
COMELEC is valid and constitutional. Consequently, the respondent COMELEC
had the authority to approve the petition for recall and set the date for the signing
of said petition. 14
In Sanchez and Evardone, the COMELEC-prescribed procedure of (1) allowing the recall petition
to be filed by at least one person or by less than 25% of the total number of registered voters
and then (2) inviting voters to sign said petition on a date set for that purpose, was never put to
issue. As this is the crux of the present constitutional challenge, the proper time has come for
this court to issue a definitive ruling on the matter.
Apropos for starters is the following chronicle of the evolution of the mechanism of recall as a
mode of removing a public officer by direct action of the people, essayed in the case of Garcia
v. COMELEC 15:
Recall is a mode of removal of a public officer by the people before the end of his
term of office. The people's prerogative to remove a public officer is an incident of
their sovereign power and in the absence of constitutional restraint, the power is
implied in all governmental operations. Such power has been held to be
indispensable for the proper administration of public affairs. Not undeservedly, it
is frequently described as a fundamental right of the people in a representative
democracy.
Recall as a mode of removal of elective local officials made its maiden
appearance in section 2 of Article XI entitled Local Government, viz.:
Sec. 2. The Batasang Pambansa shall enact a local government
code which may not thereafter be amended except by a majority
vote of all its Members, defining a more responsive and
accountable local government structure with an effective system
of recall . . .
 The Batasang Pambansa then enacted BP 337 entitled, "The Local Government
Code of 1983. Section 54 of its Chapter 3 provided only one mode of initiating
the recall elections of local election officials, i.e., by petition of at least twenty-five
percent (25%) of the total number of registered voters in the local government
unit concerned . . . .
Our legal history does not reveal any instance when this power of recall as
provided by BP 337 was exercised by our people.
In February, 1986, however, our people more than exercised their right of recall
for they resorted to revolution and they booted out of office the highest elective
officials of the land. The successful use of people power to remove public
officials who have forfeited the trust of the electorate led to its firm
institutionalization of the 1987 Constitution. Its Article XIII expressly recognized
the Role and Rights of People's Organizations . . . .
Section 3 of its Article X also reiterated the mandate for Congress to enact a
local government code which "shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative and referendum . . .
. In response to this constitutional call, Congress enacted R.A. 7160, otherwise
known as the Local Government Code of 1991, which took effect on January 1,
1992." 16
Section 69 (d) of the Local Government Code of 1991 expressly provides that "recall of any
elective . . . municipal . . . official may also be validly initiated upon petition of at least twenty-five
percent (25%) of the total number of registered voters in the local government unit concerned
during the election in which the local official sought to be recalled was elected". The law is plain
and unequivocal as to what initiates recall proceedings: only a petition of at least 25% of the total
number of registered voters, may validly initiate recall proceedings. We take careful note of the
phrase, "petition of at least twenty-five percent (25%)" and point out that the law does not state
that the petition must be signed by at least 25% of the registered voters; rather, the petition must
be "of" or by, at least 25% of the registered voters, i.e., the petition must be filed, not by one
person only, but by at least 25% of the total number of registered voters. This is understandable,
since the signing of the petition is statutorily required to be undertaken "before the election
registrar or his representative, and in the presence of a representative of the official sought to be
recalled, and in a public place in the . . . municipality . . . " 17. Hence, while the initiatory recall
petition may not yet contain the signatures of at least 25% of the total number of registered
voters, the petition must contain the names of at least 25% of the total number of registered
voters in whose behalf only one person may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by a number of people less
than the foregoing 25% statutory requirement, much less, the filing thereof by just one person,
as in the instant case, since this is indubitably violative of clear and categorical provisions of
subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice or in a vacuum. They
knew that this is the requirement under a majority of the constitutions and recall statutes in
various American states to the same extent that they were aware of the rationale therefor. While
recall was intended to be an effective and speedy remedy to remove an official who is not giving
satisfaction to the electorate regardless of whether or not he is discharging his full duty to the
best of his ability and as his conscience dictates 18 it is a power granted to the people who, in
concert, desire to change their leaders for reasons only they, as a collective, can justify. In other
words, recall must be pursued by the people, not just by one disgruntled loser in the elections or
a small percentage of disenchanted electors. Otherwise, its purposes as a direct remedy of the
people shall be defeated by the ill motives of a few among them whose selfish resort to recall
would destabilize the community and seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum
voter requirement in American recall statutes, unmistakably reveals the vigilance of lawmakers
against the abuse of the power of recall. For instance, the Supreme Court of Illinois held in the
case of In Re Bower 19 that:
[t]he only logical reason which we can ascribe for requiring the electors to wait
one year before petitioning for a recall election is to prevent premature action on
their part in voting to remove a newly elected official before having had sufficient
time to evaluate the soundness of his political policies and decisions. We view
the statutory provision requiring the number of petition signers to equal at least
45% of the total votes case in the last general election for mayor as a further
attempt to insure that an official will not have to defend his policies against
frivolous attacks launched by a small percentage of disenchanted electors. 20
Along the same lines, the Supreme Court of Colorado held in the case of Bernzen, v. City of
Boulder 21 that:
[t]he framers, by requiring that a recall petition contain the signatures of at least
25% of all votes cast in the last election for all candidates for the position which
the person sought to be recalled occupies, assured that a recall election will not
be held in response to the wishes of a small and unrepresentative minority.
However, once at least 25% of the electorate have expressed their
dissatisfaction, the constitution reserves the recall power to the will of the
electorate. 22
And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan echoed the foregoing
posturings in this wise:
 Much of what has been said to justify a limit upon recall clearly not provided or Costs against private respondent.
contemplated by the Constitution has revealed fears about an irresponsible
electorate . . . . A much cited Nebraska case pertaining to a Nebraska recall SO ORDERED.
statute provides some answers which are equally applicable to the Michigan
constitutional right of recall:

. . . Doubtless the provision requiring 30 per cent of the electors

to sign the petition before the council [is] compelled to act was
designed to avoid such a contingency. The Legislature apparently
assumed that nearly one-third of the electorate would not entail DISCIPLINARY MEASURES
upon the taxpayers the cost of an election unless the charges
made approved themselves to their understanding and they were
seriously dissatisfied with the services of the incumbent of the
office. 24 G.R. No. 168079 July 17, 2007

In the instant case, this court is confronted with a procedure that is unabashedly repugnant to
the applicable law and no less such to the spirit underlying that law. Private respondent who is a
lawyer, knows that Section 69 (d) of the Local Government Code plainly provides that recall is
validly initiated by a petition of 25% of the total number of registered voters. Notwithstanding
such awareness, private respondent proceeded to file the petition for recall with only herself as
the filer and initiator. She claims in her petition that she has, together with many others in
Tumauini, Isabela, lost confidence in the leadership of petitioner. But the petition does not bear
the names of all these other citizens of Tumauini who have reportedly also become anxious to
oust petitioner from the post of mayor. There is no doubt that private respondent is truly earnest
in her cause, and the very fact that she affixed her name in the petition shows that she claims
responsibility for the seeming affront to petitioner's continuance in office. But the same cannot be
said of all the other people whom private respondent claims to have sentiments similar to hers.
While the people are vested with the power to recall their elected officials, the same power is
accompanied by the concomitant responsibility to see through all the consequences of the
exercise of such power, including rising above anonymity, confronting the official sought to be
recalled, his family, his friends, and his supporters, and seeing the recall election to its ultimate
end. The procedure of allowing just one person to file the initiatory recall petition and then setting
a date for the signing of the petition, which amounts to inviting and courting the public which may
have not, in the first place, even entertained any displeasure in the performance of the official
sought to be recalled, is not only violative of statutory law but also tainted with an attempt to go
around the law. We can not and must not, under any and all circumstances, countenance a
circumvention of the explicit 25% minimum voter requirement in the initiation of the recall
process.
WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby GRANTED.
COMELEC Resolution No. 96-2951 is hereby DECLARED NULL and VOID and accordingly SET
ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made permanent.
OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
COURT OF APPEALS and MA. MELLY JAUD MAGBANUA, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for certiorari1 assailing the 9 May 2005 Decision2 of the Court of
Appeals (Cebu City) in CA-G.R. SP No. 73085. The Court of Appeals set aside the 3 May 2000
Decision of the Office of the Ombudsman Visayas (Ombudsman Visayas) and the 6 June 2000
Memorandum and the 28 May 2002 Order3 of the Office of the Ombudsman Manila (petitioner) in
OMB-VIS-ADM-98-0466 insofar as it imposed upon Ma. Melly Jaud Magbanua (respondent) the
penalty of dismissal from the service.
The Antecedent Facts
Respondent was the Local Treasury Operations Assistant of the City Treasurer’s Office in
Bacolod City. On 27 February 1998, the Commission on Audit (COA) conducted an examination
of respondent’s cash and account. The examination disclosed a shortage of ₱265,450. Upon
demand, respondent failed to produce the missing amount.
Respondent alleged that the shortage was due to the machinations and dishonest acts of Cash
Clerk I Monina Baja (Baja). Respondent alleged that Baja, acting as Paymaster, received payroll
funds for distribution to specific offices. In her liquidation report, Baja reflected twice the missing
amount of ₱265,450 representing cash advances for 26 September 1997 under Voucher No.
6205 to the following persons:
P. Villamor, et al. ₱ 5,100
L. Oyanib, et al. 21,900
R. Makila, et al. 74,950
M. Abada, et al. 163,500
₱ 265,450
Baja was impleaded in the case before the Ombudsman Visayas. Baja denied that respondent
designated her as Paymaster. She also denied that she received the payroll funds. Baja alleged
that her assigned task was only to take charge of the listing of payrolls and vouchers to be
included in the respective cash advances of the disbursing officers.
Respondent and Baja failed to appear during the preliminary conference conducted on 26 July
1999. Despite their non-appearance, they were given time to submit their respective Memoranda
or Position Papers before the case was considered submitted for decision.
The Ruling of the Ombudsman
In a Decision dated 3 May 2000, the Ombudsman Visayas found respondent guilty of Neglect of
Duty, and Baja guilty of Dishonesty, thus:
WHEREFORE, premises considered, it is respectfully recommended that respondent MA.
MELLY JAUD MAGBANUA be meted the penalty of SUSPENSION for SIX (6) MONTHS
WITHOUT PAY for NEGLECT OF DUTY. For having been found guilty of DISHONESTY,
respondent MONIN[]A BAJA is meted the penalty of DISMISSAL FROM SERVICE WITH
FORFEITURE OF ALL BENEFITS AND DISQUALIFICATION TO HOLD PUBLIC OFFICE.4
Petitioner reviewed the Decision of the Ombudsman Visayas. In a Memorandum dated 6 June
2000,5 petitioner imposed upon both respondent and Baja the penalty of dismissal from the
service, thus:
WHEREFORE, premises considered, and upon finding that respondent MA. MELLY JAUD
MAGBANUA GUILTY of GROSS NEGLECT OF DUTY and for VIOLATIONS OF REASONABLE
OFFICE RULES AND REGULATIONS and respondent MONINA BAJA GUILTY OF
DISHONESTY, they are both meted the penalty of DISMISSAL from service pursuant to the
provisions of Section 22(b) and (a), respectively, of Rule XIV of the Omnibus Rules
Implementing Book V of Executive Order No. 292. The penalty prescribed under Section 22(c), a
lesser offense, is deemed absorbed in a much graver offense.
Accordingly, the herein reviewed Decision dated May 3, 2000 of GIO Corazon C. Arnado-Carrillo
is hereby MODIFIED insofar as the recommended penalty of respondent MAGBANUA is
concerned.6
Respondent filed a motion for reconsideration. In an Order dated 28 May 2002,7 petitioner
denied the motion.
Respondent filed a petition for certiorari before the Court of Appeals.
The Ruling of the Court of Appeals
The Court of Appeals found that petitioner did not commit any reversible error in finding
respondent guilty of Gross Neglect of Duty. The Court of Appeals ruled that respondent was an
accountable officer. On the other hand, Baja was not officially designated as Disbursing Officer
or Paymaster but was merely assigned to "take charge of the listing of payrolls and vouchers to
be included in the respective cash advances of disbursing officers." The Court of Appeals
sustained petitioner in finding that respondent was grossly remiss in her obligations as an
accountable officer when she allowed Baja to release payroll funds which formed part of her own
cash advance. In addition, respondent allowed Baja to prepare the necessary disbursement and
liquidation reports which respondent should have prepared herself. The Court of Appeals ruled
that respondent did not even review or examine the reports prepared by Baja.
However, the Court of Appeals ruled that while petitioner’s findings were correct, petitioner has
no power to impose directly sanctions against government officials and employees who are
subject of its investigation. Citing Tapiador v. Office of the Ombudsman,8 the Court of Appeals
ruled that petitioner’s power is limited and it may only recommend, not impose, the appropriate
sanctions.
Petitioner challenges before this Court the ruling of the Court of Appeals.
The Issue
The sole issue in this case is whether the Office of the Ombudsman has the power to impose
directly administrative penalties on public officials or employees.
The Ruling of this Court
The petition has merit.
The powers of the Ombudsman are found in Article XI of the 1987 Constitution, which states in
part that the Ombudsman shall "exercise such other powers or performs such functions or duties
as may be provided by law." Sections 15, 21, and 25 of Republic Act No. 6770 (RA 6770),
otherwise known as the Ombudsman Act of 1989, provide:
SEC. 15. Powers, Functions and Duties. ― The Office of the Ombudsman shall have the
following powers, functions ad duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigatory agency of Government, the investigation
of such cases;
(2) x x x x
(3) Direct the officer concerned to take appropriate action against a public officer or
employee at fault or who neglects to perform an act or discharge a duty required by law,
and recommend his removal, suspension, demotion, fine, censure or prosecution, and
ensure compliance therewith; or enforce its disciplinary authority as provided in Section
21 of this Act: Provided, That the refusal by any officer without just cause to comply with
an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an
officer or employee who is at fault or who neglects to perform an act or discharge a duty
required by law shall be a ground for disciplinary action against said officer.
xxxx
SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. ― The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of
the Government and its subdivisions, instrumentalities and agencies, including Members of the
Cabinet, local government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over Members of Congress,
and the Judiciary.
xxxx
SEC. 25. Penalties. ― (1) In administrative proceedings under Presidential Decree No. 807, the
penalties and rules provided therein shall be applied.
(2) In other administrative proceedings, the penalty ranging from suspension without pay for
one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos
(₱5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of
the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability
of the officer or employee found guilty of the complaint or charges. (Emphasis and underscoring
supplied)
In ruling that the power of petitioner is only recommendatory, the Court of Appeals relied on the
following statement of the Court in Tapiador:
Besides, assuming arguendo, that petitioner [was] administratively liable, the Ombudsman has
no authority to directly dismiss the petitioner from government service, more particularly from his
position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution,
the Ombudsman can only "recommend" the removal of the public official or employee found to
be at fault, to the public official concerned.9
The Court has already settled this issue. In Ledesma v. Court of Appeals,10 the Court observed
that the main issue in Tapiador was the failure of the complainant to present substantial
evidence to prove the charges in the administrative case. The Court ruled that the reference
in Tapiador to the power of the Ombudsman is at best merely an obiter dictum. The Court ruled
that the statement on the Ombudsman’s power was not supported by sufficient explanation and
was susceptible to varying interpretations. The Court categorically stated that the statement
in Tapiador cannot be cited as a doctrinal declaration of the Court. The Court recognized the
authority of the Office of the Ombudsman under Article XI of the 1987 Constitution and RA 6770,
thus:
It has long been settled that the power of the Ombudsman to investigate and prosecute any
illegal act or omission of any public official is not an exclusive authority but a shared or
concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman
"recommends" the action to be taken against an erring officer or employee, the provisions in the
Constitution and in RA 6770 intended that the implementation of the order be coursed through
the proper officer x x x.
It is thus clear that the framers of our Constitution intended to create a stronger and more
effective Ombudsman, independent and beyond the reach of political influences and vested with
powers that are not merely persuasive in character. The Constitutional Commission left to [the]
Congress to empower the Ombudsman with prosecutorial functions which it did when RA 6770
was enacted. x x x.11
More at point is the Office of the Ombudsman v. Court of Appeals.12 In that case, the Office of
the Ombudsman found respondents guilty of simple misconduct and meted on them the penalty
of suspension for one month. The Court of Appeals affirmed the finding of the Office of the
Ombudsman that respondents were guilty of simple misconduct but ruled that the Office of the
Ombudsman committed grave abuse of discretion in imposing on them the penalty of
suspension for one month. The Court of Appeals also cited Tapiador in ruling that the power of
the Office of the Ombudsman is limited only to the recommendation of the penalty of removal,
suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be
at fault.
The Court in Office of the Ombudsman v. Court of Appeals found the petition of the Office of the
Ombudsman meritorious, ruling that in Ledesma, the Court already rejected the argument that
the power of the Ombudsman is only advisory or recommendatory in nature.13 The Court ruled:
In the present case, the Court similarly upholds the Office of the Ombudsman’s power to impose
the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or
employee found to be at fault, in the exercise of its administrative disciplinary authority. The
exercise of such power is well founded in the Constitution and Republic Act No. 6770.
xxxx
[The] provisions in Republic Act No. 6770 taken together reveal the manifest intent of the
lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority.
These provisions cover the entire gamut of administrative adjudication which entails the authority
to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its
rules of procedure, summon witnesses and require the production of documents, place under
preventive suspension public officers and employees pending an investigation, determine the
appropriate penalty imposable on erring public officers or employees as warranted by the
evidence, and necessarily, impose the said penalty.
xxxx
The legislative history of Republic Act No. 6770 thus bears out the conclusion that the Office of
the Ombudsman was intended to possess full administrative disciplinary authority, including the
power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of
a public officer or employee found to be at fault. The lawmakers envisioned the Office of the
Ombudsman to be "an activist watchman," not merely a passive one. x x x.14
In Estarija v. Ranada,15 petitioner assailed as unconstitutional his dismissal from the service by
the Ombudsman. Petitioner in Estarija alleged that the Ombudsman did not have direct and
immediate power to remove government officials, whether elective or appointive, who are not
removable by impeachment. The Court upheld the constitutionality of Sections 15, 21, and 25 of
RA 6770, thus affirming that the powers of the Office of the Ombudsman are not merely
recommendatory. The Court ruled in Estarija that under RA 6770 and the 1987 Constitution, the
Ombudsman has the constitutional power to directly remove from government service an erring
public official, other than a member of Congress and the Judiciary.
The Court reiterated the Ledesma and Estarija rulings in Barillo v. Gervasio16 and in Office of the
Ombudsman v. Court of Appeals.17
While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend x x x
removal, suspension, demotion x x x" of government officials and employees, the same Section
15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary
authority as provided in Section 21" of RA 6770. The word "or" in Section 15(3) before the
phrase "enforce its disciplinary authority as provided in Section 21" grants the Ombudsman this
alternative power.1avv phi1
Section 21 of RA 6770 vests in the Ombudsman "disciplinary authority over all elective and
appointive officials of the Government," except impeachable officers, members of Congress,
and the Judiciary. And under Section 25 of RA 6770, the Ombudsman may impose in
administrative proceedings the "penalty ranging from suspension without pay for one year to
dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (₱5,000.00) to
twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman x
x x."
Clearly, under RA 6770 the Ombudsman has the power to impose directly administrative penalty
on public officials or employees. Hence, the Court of Appeals erred in ruling that petitioner has
no power to impose directly administrative penalties on public officials or employees.
WHEREFORE, we GRANT the petition. We SET ASIDE the 9 May 2005 Decision of the Court of
Appeals in CA-G.R. SP No. 73085 insofar as it declares that the Office of the Ombudsman has
no authority to directly impose the penalty of dismissal from service upon respondent Ma. Melly
Jaud Magbanua. We REINSTATE the 6 June 2000 Memorandum of the Office of the
Ombudsman Manila which affirmed with modification the 3 May 2000 Decision of the Office of
the Ombudsman Visayas, as well as the Order dated 28 May 2002 which denied respondent’s
motion for reconsideration.
SO ORDERED.
G.R. No. 169918 February 27, 2008
ROMULO J. MAROHOMSALIC, petitioner,
vs.
REYNALDO D. COLE, respondent.*
DECISION
CORONA, J.:
This is a petition for review under Rule 45 of the Rules of Court assailing the decision1 of the
Court of Appeals (CA) dated July 22, 2005 in CA-G.R. SP No. 86911 entitled Romulo J.
Marohomsalic v. Reynaldo D. Cole, Office of the Ombudsman and Sylvia Hazel T. Bismonte-
Beltran.
The facts follow.
Petitioner Romulo J. Marohomsalic was employed as Special Land Investigator I of the
Provincial Environment and Natural Resources Office of the Department of Environment and
Natural Resources (PENRO-DENR) in Koronadal City.
Respondent Reynaldo D. Cole2 had a pending land dispute case in the PENRO-DENR in
Koronadal City. Sometime in February 2001, he went to said office to inquire on the status of his
case. He met Marohomsalic and asked him for assistance as he was not from Koronadal but
from General Santos City.
The allegations of fact diverge at this point. Marohomsalic, on one hand, asserted that on March
8, 2001, Cole gave him cash purportedly to cover the expenses for photocopying the documents
needed in the case. On the other hand, Cole claimed (and the Ombudsman affirmed) that
Marohomsalic demanded P15,000 to secure the reversal of the PENRO-DENR decision against
him (Cole). Cole sought the assistance of the National Bureau of Investigation to entrap
Marohomsalic. On March 8, 2001, Marohomsalic was caught in flagrante delicto receiving bribe
money of P2,700 from Cole.
An administrative complaint3 for grave misconduct was filed against Marohomsalic in the Office
of the Ombudsman-Mindanao. After evaluating the respective allegations of the parties, the
Ombudsman found Marohomsalic guilty and dismissed him from the service.4 An order dated
April 28, 2004 for the immediate implementation of Marohomsalic's dismissal was issued.5
Marohomsalic appealed to the CA by way of a petition for review under Rule 43 of the Rules of
Court. This was dismissed on grounds of procedural infirmities. He then filed this petition for
review on certiorari with a prayer for the issuance of a temporary restraining order (TRO). On
March 15, 2006, we issued a TRO stopping his dismissal during the pendency of this petition.
Marohomsalic raises two basic issues. First, he asserts that the CA acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it dismissed his petition for review on
technical grounds. Second, he claims that his right to due process was violated by both the
Ombudsman and the CA.
The petition must be denied.
There Was No Grave Abuse Of Discretion On The Part Of The CA
Marohomsalic considers as grave abuse of discretion the CA's dismissal of his petition on
technical grounds, namely, the absence of a written explanation as to why his petition was filed
via registered mail instead of personally, and improper verification.6 He argues that the CA acted
with such grave abuse of discretion because, by dismissing his petition, the Ombudsman's
authority to dismiss him and the Ombudsman's finding of grave misconduct on his part were
upheld.
Marohomsalic, however, did not substantiate his claim. Allegations of grave abuse of discretion
must be proved. A decision is not deemed tainted with grave abuse of discretion simply because
the party affected disagrees with it.
Grave abuse of discretion is a capricious and whimsical exercise of judgment that is equivalent
to lack of jurisdiction. It must be shown that the discretion was exercised arbitrarily or
despotically.7 In Solidum v. Hernandez,8 we held:
A tribunal, board or officer is said to have acted with grave abuse of discretion when it
exercised its power in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion or a virtual
refusal to perform the duty enjoined or to act in contemplation of law.
Based on the foregoing, the CA did not act with grave abuse of discretion when it dismissed
Marohomsalic's petition. Its action was predicated on legal, albeit "technical," grounds.
Marohomsalic, through counsel, assumed that the CA would understand that, because of the
distance between Manila and South Cotabato, the petition could not be filed personally.9 The CA,
however, was correct in holding that under Section 11, Rule 13 of the Rules of Court, personal
service of petitions and other pleadings is the general rule while resort to the other modes of
service and filing is the exception.10 When recourse is made to the exception, a written
explanation of why the service and the filing are not done personally becomes indispensable. If
no explanation is offered to justify resorting to the other modes (i.e., the exception), the
discretionary power of the court to expunge the pleading comes into play.11
Regarding the improper verification, Marohomsalic avers that the allegations in his pleading were
based on authentic records. He argues that such was substantial compliance with the rule on
verification. There was no further need for him to state in the verification that the allegations were
also based on his personal knowledge. To require him to do so would be contrary to law.
Section 4, Rule 7 of the Rules of Court provides:
Sec. 4. Verification. - xxx
 A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.
A pleading required to be verified xxx or lacks a proper verification, shall be treated as an
unsigned pleading.
Verification is the assurance that the allegations of the petition have been made in good faith, or
are true and correct and not merely speculative.12 Marohomsalic has apparently missed the
import of the foregoing rule. Hun Hyung Park v. Eung Won Choi13 is instructive on this point:
A reading of [the above-quoted] Section 4 of Rule 7 indicates that a pleading may be
verified under either of the two given modes or under both. The veracity of the
allegations in a pleading may be affirmed based on either one's own personal
knowledge or on authentic records, or both, as warranted. The use of the
preposition "or" connotes that either source qualifies as a sufficient basis for verification
and, needless to state, the concurrence of both sources is more than sufficient. Bearing
both a disjunctive and conjunctive sense, this parallel legal signification avoids a
construction that will exclude the combination of the alternatives or bar the efficacy of
any one of the alternatives standing alone.
Contrary to petitioner's position, the range of permutation is not left to the pleader's
liking, but is dependent on the surrounding nature of the allegations which may
warrant that a verification be based either purely on personal knowledge, or
entirely on authentic records, or on both sources.
As pointed [out by respondent], "authentic records" as a basis for verification bear
significance in petitions wherein the greater portions of the allegations are based on the
records of the proceedings in the court of origin and/or the court a quo, and not solely on
the personal knowledge of the petitioner. xxx (emphasis supplied)
We reiterate: whether the verification should be based on the pleader's personal belief or on
authentic records, or both, depends largely on the nature of the allegations. It is not a matter of
simple preference. Otherwise, the rationale of the rule will be trivialized and its resoluteness
diminished.14
The CA correctly ruled that the requirement was not merely technical for it served a purpose that
was relevant to the nature of the action. In an appeal by petition for review under Rule 43 of the
Rules of Court, the petition may be resolved on the basis of the pleadings before the appellate
court without the necessity of elevating the records from the quasi-judicial officer, tribunal or
body where the case began. This is in contrast with an appeal by writ of error under Rule 41
according to which the appellate court may not act on the appeal until after the elevation of the
records from the lower court.
It was important therefore for petitioner to have stated in his verification that (1) his allegations in
the petition were true and correct of his personal knowledge and (2) if the petition relied on
documents and records attached to the petition, that his allegations were based on records
whose authenticity he warranted.15
But granting arguendo that Marohomsalic's contention was correct, his petition must
nevertheless still fail. The CA found that only the March 24, 2004 order of the Office of the
Ombudsman was an original copy. The copy of the February 23, 2004 decision of the
Ombudsman was a machine copy. Furthermore, of the ten other documents attached to the
petition, none was certified as a true and authentic copy. The only conclusion we can make is
that Marohomsalic's verification was not based either on personal knowledge or on authentic
records.
While procedural rules may be relaxed in the interest of justice, it is well-settled that these are
tools designed to facilitate the adjudication of cases. The relaxation of procedural rules in the
interest of justice was never intended to be a license for erring litigants to violate the rules with
impunity. Liberality in the interpretation and application of the rules can be invoked only in proper
cases and under justifiable causes and circumstances. While litigation is not a game of
technicalities, every case must be prosecuted in accordance with the prescribed procedure to
ensure an orderly and speedy administration of justice.16
The Ombudsman Has The Power To Order The Dismissal Of A Public Officer
The jurisdiction of the Ombudsman over disciplinary cases against government employees is
vested by no less than Section 12, Article XI of the Constitution.17 Part of such disciplinary
authority in administrative cases is the power to investigate and prosecute, in accordance with
the requirements laid down by law. One such requirement is that substantial evidence must
always support any finding.18
One of the grounds for an administrative complaint cognizable by the Ombudsman is an act or
omission contrary to law or regulations like grave misconduct. It is characterized by the elements
of corruption, clear intent to violate the law or flagrant disregard of an established rule.
Corruption as an element of grave misconduct includes the act of an official who unlawfully or
wrongfully uses his station or character to procure some benefit for himself, contrary to the rights
of others.19
The Ombudsman found that Marohomsalic directly requested and received money from Cole in
connection with a transaction in which he was involved in his official capacity. It concluded that
Marohomsalic's act constituted grave misconduct. An analysis of the assailed decision20 of the
Ombudsman-Mindanao shows that there was substantial evidence to sustain such finding.
Without a showing of grave abuse of discretion, there is nothing more left to be done but to
uphold the findings of fact of the Ombudsman.
The Supreme Court is not a trier of facts, especially in a petition for review under Rule 45.
In Brito v. Office of the Deputy Ombudsman for Luzon, et al., we said that:21
Except in cases when there is grave abuse of discretion [in the exercise of its discretion],
which is absent in [this] case, we have adopted a policy of non-interference in the
exercise of the Ombudsman's constitutionally mandated powers on this matter. This rule
is based not only upon respect for the investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise,
the functions of the courts will be grievously hampered by innumerable petitions assailing
the dismissal of investigatory proceedings conducted by the Office of the Ombudsman
with regard to complaints filed before it, xxx.
Corollary to the Ombudsman's disciplinary authority is his authority to dismiss. This matter has
long been settled. RA 6770,22 which provides for the functional and structural organization of the
Office of the Ombudsman, was passed by Congress to deliberately endow the Ombudsman with
the power to prosecute offenses committed by public officers and employees to make him a
more active and effective agent of the people in ensuring accountability in public office.
Moreover, Congress granted the Ombudsman broad powers to implement his own actions.23
In Ombudsman v. CA and Magbanua,24 the extent of the Ombudsman's disciplinary
administrative authority was explained:
[The] provisions in Republic Act No. 6770 taken together reveal the manifest intent of the
lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary
authority. These provisions cover the entire gamut of administrative adjudication which
entails the authority to, inter alia, receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure, summon witnesses and require the
production of documents, place under preventive suspension public officers and
employees pending an investigation, determine the appropriate penalty imposable on
erring public officers or employees as warranted by the evidence, and necessarily,
impose the said penalty.
xxx xxx xxx
The legislative history of Republic Act No. 6770 thus bears out the conclusion that the
Office of the Ombudsman was intended to possess full administrative disciplinary
authority, including the power to impose the penalty of removal, suspension, demotion,
fine, censure, or prosecution of a public officer or employee found to be at fault. The
lawmakers envisioned the Office of the Ombudsman to be "an activist watchman," not
merely a passive one. xxx
Clearly, the Ombudsman has the power to directly impose administrative penalties on erring
public officials and employees like Marohomsalic.
There Was No Denial
Of Due Process
Marohomsalic avers that his right to due process of law was violated by the Ombudsman when
his case was set neither for preliminary investigation nor for preliminary conference. He further
alleges that he should have been investigated under the "old rules of procedure" of the Office of
the Ombudsman, not under the "new rules," because he committed the alleged offense when the
"old rules" were still in effect.
Marohomsalic is confused. The Office of the Ombudsman has only one set of rules of procedure
and that is Administrative Order No. 07, series of 1990, as amended.25 There have of course
been various amendments made thereto but it has remained, to date, the only set of rules of
procedure governing cases filed in the Ombudsman. Hence, the phrase "as amended" is
correctly appended to Administrative Order No. 7 every time it is invoked. Administrative Order
No. 1726 is just one example of these amendments.
Semantics aside, Marohomsalic's contention that his case should have been prosecuted under
Administrative Order No. 7, s. 1990, as amended, without the amendments introduced by
Administrative Order No. 17, is erroneous. Section 4 of Administrative Order No. 7, as amended
by Administrative Order No. 17, provides:
[The rules] shall govern all cases brought after they take effect and to further
proceedings in cases then pending, except to the extent that their application would not
be feasible or would cause injustice to any party. (emphasis supplied)
Marohomsalic failed to prove how an application of the rules as amended would not be feasible
under the circumstances or how it would cause injustice to him.
Marohomsalic likewise maintains that the "old rules" must apply to his case, in accordance with
the principle that criminal laws favorable to the accused must be liberally construed in his favor.
We disagree. Since the subject of this petition is an administrative complaint, not a criminal
complaint, this case is not subject to criminal laws and procedure, or principles applicable only
thereto. More importantly, he must not be allowed to hide behind the cloak of liberal construction
favoring the accused, if at all this principle finds application in this case. To permit him to do so
will be a mockery of public trust and accountability.
WHEREFORE, the petition is hereby DENIED. The temporary restraining order we issued on
March 15, 2006 is LIFTED.
Costs against petitioner.
SO ORDERED.