G.R. No. 152651 August 7, 2006 ANDABAI T. ARIMAO, Petitioner, vs. SAADEA P. TAHER, Respondent. DECISION TINGA, J.

: Before us is a petition for review of the Decision and Order dated 16 October 2001 and 31 January 2002, respectively, of Branch 14 of the Regional Trial Court, 12th Judicial Region, Cotabato City, in SPL. Civil Case No. 660, entitled "Saadea P. Taher v. Gov. Nur Misuari, in his capacity as ARMM Regional Governor, Andabai T. Arimao and Bajunaid Kamaludin, Acting Director of TESDA-ARMM," which enjoined respondents therein, including petitioner Andabai T. Arimao, from carrying out the effects of the Memorandum dated 04 August 2000 issued by then Autonomous Region in Muslim Mindanao (ARMM) Governor Nur P. Misuari. The facts of the case, as culled from the records, follow: On 22 March 1995, petitioner was appointed as Director II, Bureau of Non-formal Education, Department of Education, Culture and Sports (DECS-ARMM). Thereafter, on 17 July 1995, respondent was appointed Education Supervisor II. Petitioners appointment, however, was protested by a certain Alibai T. Benito, who claimed that said appointment did not pass through any evaluation by the personnel selection board. 1 Petitioners appointment was eventually disapproved by the Civil Service Commission-Field Office (CSC-FO), Cotabato City, for failure to meet the experience required for the position. On 02 May 1996, the CSC, through Resolution No. 96- 3101, affirmed the findings of the CSC-FO and ordered petitioner to be reverted to her former position of Education Supervisor II. 2 Petitioner sought reconsideration of the decision. In the interim, petitioner applied for and was granted by the DECS-ARMM an academic scholarship with pay effective 30 October 1996 in her capacity as Education Supervisor II. The scholarship was limited to a period of one year. 3 Meanwhile, petitioners motion for reconsideration of CSC Resolution No. 96-3101 was denied. 4 Subsequently, she filed a petition for review of the two CSC Resolutions before the Court of Appeals 5 which, however, denied due course to the petition on 10 June 1998. 6 On 17 October 1998, the Court of Appeals issued an Entry of Judgment declaring the denial of the petition to be final and executory. 7 In the meantime, the position of Education Supervisor II being occupied by respondent was devolved from DECS-ARMM to the Technical Education and Skills Development Authority (TESDA)- ARMM. On 2 December 1998, petitioner informed the CSC Regional Office in Cotabato City that she was already allowed by the Director of TESDA-ARMM to report for duty, only that she and respondent are reporting to the

same position. 8 On 10 December 1998, the CSC Regional Director enjoined respondent from reporting to the TESDA-ARMM. 9 It appears, however, that respondent continued to report as Education Supervisor II. On 7 December 1998, respondent, unaware that petitioner was granted a study leave from October 1996 to October 1997, filed a complaint before the Regional Director, ARMM, relative to petitioners continued absence. On 24 December 1998, upon the complaint filed by respondent, the Executive Secretary of ARMM, by authority of the ARMM Regional Governor and per his Memorandum of even date, declared petitioner to have been Absent Without Leave (AWOL) by reason of her failure to report to her office for at least a year after the expiration of her study leave and directed that she be dropped from the payroll. 10 Petitioner appealed the said Memorandum to the Office of the ARMM Regional Governor. In Resolution No. 001-99 dated 17 March 1999, the said office denied the appeal, finding that from 30 October 1996 up to the opening of school year 1997-1998, first semester, petitioner failed to report to office despite the fact that she was not able to enroll immediately upon the approval of her study leave. 11 Further, petitioners act of enrolling in the second semester of school year 1997-1998 in the absence of an approved extension of her study leave is a clear violation of the implementing guidelines of Republic Act No. 4670, or the Magna Carta for Public School Teachers. The dispositive portion of the Resolution reads: WHEREFORE, [p]remises considered, the instant letter of Mrs. Arimao to reconsider the action of the Executive Secretary in dropping her from the roll is hereby DENIED and is accordingly DISMISSED for lack of merit. Thus, the Memorandum Ordered [sic] of the Executive Secretary on Authority of the Regional Governor dated December 24, 1998 is hereby affirmed and remained [sic] undisturbed. Nonetheless, since the act of dropping one from the roll is non[-]disciplinary action on the ground of being guilty of the charge of Absence Without Approved Leave (AWOL) the respondent may be appointed to other position[s] in the Government service at the discretion of the appointing authority. SO ORDERED. 12 On 20 July 2000, Datu Guimid P. Matalam, Regional Vice Governor/Acting Regional Governor, ordered petitioner to reassume her former position as Education Supervisor II, and revoked the ARMM Executive Secretarys Resolution dated 24 December 1998. 13 However, on 1 August 2000, the same Acting Regional Governor issued the following order: In the interest of the service and considering the need to observe fairness and justice in dealing with our personnel, you are hereby directed to implement the above mentioned resolution rendered by the Regional Solicitor General on March 17, 1999. As such, you are likewise directed to maintain STATUS QUO on the part of Ms. SAADEA P. TAHER, Education Supervisor II with permanent status duly approved by the Civil Service Commission.

This Memorandum Order takes effective [sic] immediately and superscede/ revokes all previous order inconsistent herewith. 14 However, on 4 August 2000, ARMM Regional Governor Misuari issued a Memorandum 15 to the TESDA-ARMM, ordering petitioners reinstatement, presumably in accordance with CSC Resolution No. 96-3101 and CSC-ARMM directive dated 26 July 2000. Respondent thus filed a Petition for Prohibition before the Regional Trial Court of Cotabato City, claiming that she has no other plain, speedy and adequate remedy, as she stands to suffer grave injustice and irreparable injury if she is removed from the office which she has held for more than five years. 16 On 21 August 2000, the trial court issued a writ of preliminary injunction commanding ARMM Regional Governor Misuari and the TESDA-ARMM to desist from carrying out the said Memorandum. 17 On 16 October 2001, the trial court rendered the assailed Decision, 18 holding that the 04 August 2000 Memorandum of the ARMM Regional Governor could no longer be implemented because the CSC resolutions ordering petitioners reinstatement, relied upon by ARMM Regional Governor Misuari, were superseded by the CSC resolutions finding petitioner on AWOL and dropping her from the payroll. According to the trial court, this controversy has to be resolved by the CSC, which has the exclusive jurisdiction over disciplinary cases and cases involving personnel actions affecting employees in the public service. The trial court thus ordered: WHEREFORE, as prayed for, the respondents are ordered to cease and desist in prosecuting or carrying out the effects of the August 4, 2000 [M]emorandum and for respondents to cease and desist from continuance of any act which will be in violation of the right of petitioner with respect to the subject matter of the action or proceeding so as not to render the judgment ineffectual. SO ORDERED. 19 Petitioner filed a motion for reconsideration but the motion was denied on 31 January 2002. 20 On 31 October 2000, petitioner moved for the issuance of a writ of execution of CSC Resolution No. 96-3101 (ordering her reinstatement to her former office). CSC issued Resolution No. 01-0132, 21 dated 15 January 2001, ordering the concerned officials of the DECS-ARMM to implement CSC Resolution No. 96-3101. Meanwhile, on 22 May 2002, the CSC, acting on the letter of the Regional Solicitor General of the ARMM regarding the implementation of CSC Resolution No. 96-3101, issued Resolution No. 020743. 22 According to the CSC, it issued Resolution No. 01-0132 because petitioner did not inform the Commission that she had been declared on AWOL and dropped from the rolls since 24 December 1998. 23 ARMM Regional Governor Misuaris Memorandum dated 04 August 2000 ordering petitioners reinstatement is rendered moot and academic because prior to the said date she was already separated from the service, the CSC added. 24

Petitioner now comes before us, arguing that a writ of prohibition does not lie to enjoin the implementation of the directive of the ARMM Governor implementing the CSC Resolution reinstating her to her former position. 25 She claims that the trial court gravely erred in taking cognizance of the petition for prohibition filed by respondent, and failed to observe the doctrine of primary jurisdiction, considering that the case, as declared by the trial court itself, involved personnel actions which are within the CSCs exclusive jurisdiction. 26 In addition, petitioner contends that by virtue of the disapproval of her appointment, respondents appointment to Education Supervisor II was invalidated, and thus both of them are automatically restored to the their former positions by operation of law. She further claims that the AWOL Order of the CSC was previously revoked on 20 July 2000 by then Acting Regional Governor Matalam, and that the same Memorandum revoked the 24 December 1998 Memorandum of the Executive Secretary, Atty. Randolph C. Parcasio. 27 Finally, petitioner argues that it is not known which position she was being declared AWOLwhen she was declared on AWOL, she was ordered to revert to her former position as Education Supervisor II, which position was already occupied by respondent who refused to yield the position, and she was also prevented from functioning as Director II. 28 In her Comment, 29 respondent claims that since no appeal was taken from the AWOL order, it has become final and executory and thus cannot be revoked by mere issuance of a Memorandum. 30 She argues that the doctrine of primary jurisdiction does not apply to the case a quo because it raises a purely legal question, that is, the propriety of petitioners assumption of her former position despite having been declared on AWOL and dropped from the rolls. Due to the urgency of the situation and the immediacy of the problem, recourse through the same officials who issued the assailed memoranda would be futile. 31 The Court is thus tasked to resolve the following issues: 1. Whether a writ of prohibition lies to enjoin the directive of the ARMM Governor to reinstate petitioner to the position of Education Supervisor II despite petitioners having been declared on AWOL and dropped from the roll; 2. Whether the trial court erred in taking cognizance of the petition for prohibition and whether the filing of the petition for prohibition violated the doctrine of primary jurisdiction; 3. Whether the AWOL order against petitioner validated respondents occupancy of the position of Education Supervisor II; 4. Who, as between petitioner and respondent, is entitled to the position of Education Supervisor II. The petition must be denied. Petitioner cannot be reinstated by mere directive of the ARMM Regional Governor The assailed Memorandum issued by ARMM Regional Governor is reproduced in full, thus:

TO : TESDA ARMM Cotabato City SUBJECT : Implementation of CSC Resolution No. 96-3101, and CSC-ARMM Directive Order Dated July 26, 2000 DATE : August 4, 2000 In the highest interest of public service and consistent with the legal and constitutional precept of promoting social justice, the above-captioned resolutions are hereby implemented. As such, you are hereby directed to re-instate ANDABAI T. ARIMAO to her former position as Education Supervisor II pursuant to the foregoing resolution and the provisions of Sec. 13, Rule VI, Book V of E.O. No, 292 which are further buttressed by the series of communication of CSC Regional Office No. XII dated September 10, 1998, October 20, 1998, November 03, 1998 and December 10, 1998 and directive order of CSC-ARMM dated July 26, 2000 respectively. This [M]emorandum shall take effect immediately and shall take precedence over all memoranda, orders and other issuances [sic] inconsistent herewith. (Signed) PROF. NUR P. MISUARI Regional Governor 32 Even a cursory look at the Memorandum shows that the order of petitioners reinstatement was made in reliance on, or in implementation of, CSC Resolution No. 96-3101 and CSC-ARMM Directive Order dated 26 July 2000, both of which ordained her reinstatement. However, these directives relied upon by ARMM Regional Governor Misuari were rendered functus officio by no less than the CSC itself per its Resolution No. 020743, which, as previously noted, ruled that the TESDA-ARMM is not under legal obligation to reinstate petitioner because she was already dropped from the rolls effective 24 December 1998. CSC Resolution No. 01-0132, ordering the implementation of CSC Resolution No. 96-3101, was issued because petitioner purposely concealed and withheld from the CSC the information that she had been declared AWOL and dropped from the rolls. 33 With Resolution No. 020743, CSC Resolution No. 01-0132 was effectively revoked. Likewise, with the finality of the AWOL order and her having been dropped from the rolls, petitioner legally lost her right to the position of Education Supervisor II. In any case, she has already received from the DECS-ARMM her salaries as Education Supervisor II for the period October 1996 to 1997, or the period corresponding to the time the position was still with the said department. 34 Petitioner argues that the 24 December 1998 Memorandum finding her to be on AWOL was revoked and rendered moot by subsequent issuances. We are not persuaded. While it is true that then Acting Regional Governor Matalam revoked the 24 December 1998 order of the ARMM Executive Secretary, he recalled the revocation via his Memorandum dated 01 August 2006. Thus, the AWOL order dated 24 December 1998 was in full force and effect when ARMM Regional Governor Misuari

issued the assailed 04 August 2000 Memorandum. Propriety of the Petition for Prohibition The trial court did not err in taking cognizance of the petition for prohibition. The principal purpose for the writ of prohibition is to prevent an encroachment, excess, usurpation or assumption of jurisdiction on the part of an inferior court or quasi-judicial tribunal. It is granted when it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or to put a stop to multiplicity of actions. Thus, for a party to be entitled to a writ of prohibition, he must establish the following requisites: (a) it must be directed against a tribunal, corporation, board or person exercising functions, judicial or ministerial; (b) the tribunal, corporation, board or person has acted without or in excess of its jurisdiction, or with grave abuse of discretion; and (c) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. 35 Under Republic Act No. 6734, 36 executive power in the ARMM is vested in the Regional Governor, who has control of all the regional executive commissions, boards, bureaus and offices, and exercises general supervision over the local government units within the Autonomous Region. 37 The assailed Memorandum of ARMM Regional Governor Misuari was presumably issued in the exercise of his power of control and supervision. However, by ordering the reinstatement of petitioner to her former position based upon an outdated CSC Resolution, despite the AWOL order and her being dropped from the rolls, ARMM Regional Governor Misuari acted with grave abuse of discretion, amounting to excess of jurisdiction. Neither is the petition for prohibition before the trial court violative of the doctrine of primary jurisdiction. Said doctrine precludes a court from arrogating unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. 38 An exception to this rule is when the issue raised is a purely legal question, well within the competence and the jurisdiction of the court and not the administrative agency. 39 In the instant case, the legal question of whether a memorandum of the ARMM Governor, ordering the reinstatement of an employee declared AWOL and dropped from the rolls, was issued in excess of jurisdiction is a legal question which should be resolved by the courts. For the same reason that the issues to be resolved in this case are purely legal in nature, respondent need not abide by the doctrine of exhaustion of administrative remedies. 40 Besides, to allow the matter to remain with the Office of the ARMM Governor for resolution would be self-defeating and useless and cause unnecessary delay since it was the same office which gave the conflicting issuances on petitioners reinstatement. Neither petitioner nor respondent is entitled to the position of Education

Supervisor II The finality of the disapproval of petitioners promotion, as well as that of the Order declaring petitioner on AWOL and dropping her from the rolls, is no longer disputed. Thus, as found by the CSC in its Resolution No. 020743, TESDA has no legal obligation to reinstate petitioner to the position of Education Supervisor II. This, however, should not be construed as a declaration that respondent is entitled to the position of Education Supervisor II. Section 13, Rule 6 of the Omnibus Rules Implementing Book V, E.O. 292, provides: All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in lower positions and automatically restores them to their former positions. However, the affected persons are entitled to the payment of salaries for services actually rendered at a rate fixed in their promotional appointments. Section 19 of the same rule states: SEC. 19. An appointment though contested shall take effect immediately upon its issuance if the appointee assumes the duties of the position and the appointee is entitled to receive the salary attached to the position. However, the appointment, together with the decision of the department head shall be submitted to the Commission for appropriate action within 30 days from the date of its issuance otherwise the appointment becomes ineffective thereafter. Likewise, such an appointment shall become ineffective in case the protest is finally resolved against the protestee, in which case he shall be reverted to his former position. It must be noted that while respondent s appointment to the position of Education Supervisor II was approved as permanent and completed, it was nonetheless made subject to the outcome of the protest filed against petitioners appointment. 41 At the back of the appointment, the following appears: This appointment is subject to the outcome of the protest of Alibai Benito in the appointment of Andabai Arimao former incumbent to the position. 42 As a chain reaction of the disapproval of petitioners promotional appointment as Director II, respondents appointment to Education Supervisor II was likewise invalidated. The efficacy of respondents appointment was dependent on the validity of petitioners promotional appointment which in turn was subject to the outcome of the protest against it. Thus, as of 17 October 1998or the date of finality of the denial of the petition questioning the disapproval of petitioners appointment as Director IIboth petitioner and respondent were reverted to their former positions. Petitioner should have been allowed to re-assume her position of Education Supervisor II as of the said date, and thereafter remain in the said office until she was dropped from the rolls in 1999. Respondent, in turn, should have been made to return to her former position.

Indeed, for all intents and purposes, respondent became the Education Supervisor II by virtue of her appointment as such on 25 July 1995. However, her tenure ended when petitioner was reverted to the same position on 17 October 1998. Thus, during respondents occupancy of the position of Education Supervisor II after petitioners promotional appointment had been disapproved, respondent should be deemed a de facto officer only. 43 A de facto officer is "one who has the reputation of being the officer he assumes and yet is not a good officer in point of law." He is one who is in possession of the office and discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer. 44 The difference between the basis of the authority of a de jure officer and that of a de facto officer is that one rests on right, the other on reputation. 45 In Monroy v. Court of Appeals, et al., 46 this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. 47 In the instant case, respondent should account to petitioner for the salaries she received from the time the disapproval of petitioners promotion became final, up to the time when petitioner was declared on AWOL and dropped from the rolls. However, respondent may be allowed to keep the emoluments she received during said period, there being no de jure officer at the time, 48 following our ruling in Civil Liberties Union v. Executive Secretary, 49 to wit: [I]n cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. 50 There is no question that respondent discharged the duties of Education Supervisor II from the time she was appointed to the position and even after her appointment was invalidated as a result of the invalidation of petitioners promotional appointment. In view of the services respondent rendered to the TESDA and the people of the ARMM, it would be iniquitous to deny her the salary appertaining to the position corresponding to the period of her service. All the same, however, respondent cannot continue her unauthorized occupancy, notwithstanding the fact that the position of Education Supervisor II has been vacant since 1999. Absent any showing that she has been reappointed to the position after petitioner was declared AWOL and dropped from the rolls, respondent cannot lay a valid claim thereto. WHEREFORE, the petition is DENIED and the Decision and Order dated 16 October 2001 and 31 January 2002, respectively, of the RTC, 12th Judicial Region, Branch 14 are AFFIRMED.

Respondent is ordered to VACATE the position of Education Supervisor II, TESDA-ARMM, and turn over to petitioner the emoluments she received for the position from 17 October 1998 to 17 March 1999. Costs against petitioner. SO ORDERED.

G.R. No. 90762 May 20, 1991 LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, vs. LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, respondents. Zozimo G. Alegre for petitioner. The Provincial Attorney for respondents. RESOLUTION GUTIERREZ, JR., J.:p This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting Vice-Governor and, therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments while actually discharging the duties of the office. The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988. On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary ViceGovernor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads: WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no permanent (sic) nor a vacancy in said office.

The Honorable Leopoldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of office to said position. WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law. WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L. Granados and the Honorable Renato M. Rances. RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-Governor of Leyte. (Rollo, p. 27) The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion. On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The pertinent portion of the letter reads: This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there is no succession provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a temporary vice-governor is not necessary. We hold the view that the designation extended by the Secretary of Local Government in favor of one of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vice-governor during the pendency of the electoral controversy in the Office of the Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily designated to perform the functions of the vice-governor could not be considered that the Sangguniang member succeeds to the office of the latter, for it is basic that designation is merely an imposition of additional duties to be performed by the designee in addition to the official functions attached to his office. Furthermore, the necessity of designating an official to temporarily perform the functions of a particular public office, would depend on the discretion of the appointing authority and the prevailing circumstances in a given area and by taking into consideration the best interest of public service. On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as

vice-governor temporarily. (Rollo, p. 31) In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The letter states: In view thereof, please correct previous actions made by your office and those of the Sangguniang Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32) On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request. Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte. During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor. On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon. On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the Vice-Governor of Leyte. On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such. The petitioner interposes the following reason for the allowance of the motion for reconsideration: THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE

JUSTICE AND EQUITY. The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to make temporary appointments? The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the Local Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus for it solely to resolve. The arguments are of doubtful validity. The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office . (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61) Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had the authority to designate the petitioner. We hold in the affirmative. The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting.

The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections. The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code. Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and reconsidered his previous position and acknowledged the need for an acting Vice-Governor. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. Whether or not the absence of a Vice-Governor would

main or prejudice the province of Leyte, is for higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve as the buffer in case something might happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political considerations. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor. The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz: Section 49: In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . . By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary appointment. In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.

There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974]) WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be retained by him. SO ORDERED.

G.R. No. 83896 February 22, 1991 CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815 February 22, 1991 ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents. Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896. Antonio P. Coronel for petitioners in 83815. FERNAN, C.J.:p These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are: Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman. Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two

positions other than his primary position. Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary. Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No. 83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions. Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the

Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6 Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers one, the President and her official family, and the other, public servants in general allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example." 7 Article IX-B, Section 7, par. (2) 8 provides: Sec. 7. . . . . . Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10 being the first official construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of appointments or designations of an appointive executive official to positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned (disparate positions). In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in Government are those provided in the Constitution,

namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies or assistants. There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned. The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "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 corporation or their subsidiaries." We rule in the negative. 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. 11

The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the present time. This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983." Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each. 13 The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would

be discontinued. But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless 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." It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he 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." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are

not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case." 14 Thus, 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 I-XB 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. This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure. Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is

absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet, 15 and to act as President without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify. 16 Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII. 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. 17 Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. 19 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. 20 Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio

capacity as provided by law and as required 22 by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies. The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of money, banking and credit.
25

for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments." 32 The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board. If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries. Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be supervision, thereby deprived of the means for control

Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26 To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise 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." 27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30 The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that

and resulting in an unwieldy and confused bureaucracy. It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor. The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of his position," 36 express reference to certain high-ranking appointive public officials like members of the Cabinet were made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and Industry. 38 While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the article on the Civil Service Commission had been approved on third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only after the draft Constitution had

undergone reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ." What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission. That this exception would in the final analysis apply also to the President and his official family is by reason of the legal principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary functions may be considered as not constituting "any other office." 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 42 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." 43 The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof. 44 It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof. In the light of the construction given to Section 13, Article

VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of. During their tenure in the questioned positions, respondents may be considered de facto officers and as

such entitled to emoluments for actual services rendered. 46 It has been held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and void and is accordingly set aside. SO ORDERED.

G.R. No. 120193 March 6, 1996 LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS EVANGELISTA, respondents. HERMOSISIMA, JR., J.:p Novel is the situation created by the decision of the Commission on Elections which declared the winner in an election contest and awarded damages, consisting of attorney's fees, actual expenses for xerox copies, unearned salary and other emoluments for the period, from March, 1994 to April, 1995, en masse denominated as actual damages, notwithstanding the fact that the electoral controversy had become moot and academic on account of the expiration of the term of office of the Municipal Mayor of Kidapawan, North Cotabato. Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary restraining order and writ of preliminary injunction, seeking the review of the decision en banc 1 of the Commission of Elections (COMELEC) denying the motion for reconsideration of the decision 2 of its First Division, 3 which reversed the decision 4 of the Regional Trial Court 5 in the election case 6 involving the herein parties. While the Regional Trial Court had found petitioner Luis Malaluan to be the winner of the elections for the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the contrary, found private respondent Joseph Evangelista to be the rightful winner in said elections. Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held on May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner's 9,792 votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181 precincts of the said municipality. The trial court declared petitioner as the duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court found private respondent liable not only for Malaluan's protest expenses but also for moral and exemplary damages and attorney's fees. On February 3, 1994, private respondent appealed the trial court decision to the COMELEC. Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending appeal. The motion was granted by the trial court, in an order, dated March 8, 1994, after petitioner posted a bond in the amount of P500,000.00. By virtue of said order, petitioner assumed the office of Municipal Mayor of Kidapawan, North Cotabato, and exercised the powers and functions of said office. Such exercise was not for long, though. In the herein assailed decision adverse to Malaluan's continued governance of the Municipality of Kidapawan, North

and

JOSEPH

Cotabato, the First Division of the Commission on Elections (COMELEC) ordered Malaluan to vacate the office, said division having found and so declared private respondent to be the duly elected Municipal Mayor of said municipality. The COMELEC en banc affirmed said decision. Malaluan filed this petition before us on May 31, 1995 as a consequence. It is significant to note that the term of office of the local officials elected in the May, 1992 elections expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns petitioner's right to the mayoralty seat in his municipality 7 because expiration of the term of office contested in the election protest has the effect of rendering the same moot and academic. 8 When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value. 9 This rule we established in the case of Yorac vs. Magalona 10 which we dismissed because it had been mooted by the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. This was the object of contention between the parties therein. The recent case of Atienza vs. Commission on Elections, 11 however, squarely presented the situation that is the exception to that rule. Comparing the scenarios in those two cases, we explained: Second, petitioner's citation of Yorac vs. Magalona as authority for his main proposition is grossly inappropriate and misses the point in issue. The sole question in that case centered on an election protest involving the mayoralty post in Saravia, Negros Occidental in the general elections of 1955, which was rendered moot and academic by the expiration of the term of office in December, 1959. It did not involve a monetary award for damages and other expenses incurred as a result of the election protest. In response to the petitioner's contention that the issues presented before the court were novel and important and that the appeal should not be dismissed, the Court held citing the same provision of the Rules of Court upon which petitioner staunchly places reliance that a decision on the merits in the case would have no practical value at all, and forthwith dismissed the case for being moot. That is not the case here. In contradistinction to Yorac, a decision on the merits in the case at bench would clearly have the practical value of either sustaining the monetary award for damages or relieving the private respondent from having to pay the amount thus awarded. 12 Indeed, this petition appears now to be moot and academic because the herein parties are contesting an elective post to which their right to the office no longer exists. However, the question as to damages remains ripe for adjudication.

The COMELEC found petitioner liable for attorney's fees, actual expenses for xerox copies, and unearned salary and other emoluments from March, 1994 to April, 1995, en masse denominated as actual damages, default in payment by petitioner of which shall result in the collection of said amount from the bond posted by petitioner on the occasion of the grant of his motion for execution pending appeal in the trial court. Petitioner naturally contests the propriety and legality of this award upon private respondent on the ground that said damages have not been alleged and proved during trial. What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion in awarding the aforecited damages in favor of private respondent. The Omnibus Election Code provides that "actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law." 13 COMELEC Rules of Procedure provide that "in all election contests the Court may adjudicate damages and attorney's fees as it may deem just and as established by the evidence if the aggrieved party has included such claims in his pleadings." 14 This appears to require only that the judicial award of damages be just and that the same be borne out by the pleadings and evidence The overriding requirement for a valid and proper award of damages, it must be remembered, is that the same is in accordance with law, specifically, the provisions of the Civil Code pertinent to damages. Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages." The Civil Code further prescribes the proper setting for allowance of actual or compensatory damages in the following provisions: Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In case of fraud, bad faith, malice or wanton attitude, the obliger shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant. Considering that actual or compensatory damages are appropriate only in breaches of obligations in cases of contracts and quasi-contracts and on the occasion of crimes and quasi-delicts where the defendant may be held liable for all damages the proximate cause of which is the

act or omission complained of, the monetary claim of a party in an election case must necessarily be hinged on either a contract or a quasi-contract or a tortious act or omission or a crime, in order to effectively recover actual or compensatory damages. 15 In the absence of any or all of these, "the claimant must be able to point out a specific provision of law authorizing a money claim for election protest expenses against the losing party" 16. For instance, the claimant may cite any of the following provisions of the Civil Code under the chapter on human relations, which provisions create obligations not by contract, crime or negligence, but directly by law: Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. xxx xxx xxx Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxx xxx xxx (5) Freedom of suffrage; In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. . . . 17 Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00 constituting salary and other emoluments from March, 1994 to April, 1995 that would have accrued to him had there not been an execution of the trial court's decision pending appeal therefrom in the COMELEC. The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of an election protest, an elective official who has been proclaimed by the COMELEC as winner in an electoral contest and who assumed office and entered into the performance of the duties of that office, is entitled to the compensation, emoluments and allowances legally provided for the position. 18 We ratiocinated in the case of Rodriguez vs. Tan that: This is as it should be. This is in keeping with the ordinary course of events. This is simple justice. The emolument must go to the person who rendered the service unless the contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the policy and the rule that has been followed consistently in this jurisdiction in

connection with positions held by persons who had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary rule has been upheld. 19 In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while the general rule is that the ousted elective official is not obliged to reimburse the emoluments of office that he had received before his ouster, he would be liable for damages in case he would be found responsible for any unlawful or tortious acts in relation to his proclamation. We quote the pertinent portion of that opinion for emphasis: Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which led to and resulted in his proclamation as senator-elect, when in truth and in fact he was not so elected, he would be answerable for damages. In that event the salary, fees and emoluments received by or paid to him during his illegal incumbency would be a proper item of recoverable damage. 20 The criterion for a justifiable award of election protest expenses and salaries and emoluments, thus, remains to be the existence of a pertinent breach of obligations arising from contracts or quasi-contracts, tortious acts, crimes or a specific legal provision authorizing the money claim in the context of election cases. Absent any of these, we could not even begin to contemplate liability for damages in election cases, except insofar as attorney's fees are concerned, since the Civil Code enumerates the specific instances when the same may be awarded by the court. Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen's compensation and employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. 21 Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of respondent COMELEC for awarding actual damages to private respondent in the form of reimbursement for attorney's fees, actual expenses for xerox copies, and salary and other emoluments that should have accrued to him from March, 1994 to April, 1995 had the RTC not issued an order for execution pending appeal. The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory damages in this wise: . . . under the present legal setting, it is more difficult than in the past to secure an award of actual or compensatory damages either against the protestant or the protestee because of the requirerments of the law. In the instant case, however, We are disposed to conclude that the election protest filed by the protestant is clearly unfounded. As borne out by the results of the appreciation of ballots conducted by this Commission, apparently the protest was filed in bad faith without sufficient cause or has been filed for the sole purpose of molesting the protestee-appellant for which he incurred expenses. The erroneous ruling of the Court which invalidated ballots which were clearly valid added more injury to the protestee-appellant. This would have been bearable since he was able to perfect his appeal to this Commission. The final blow, however, came when the Court ordered the execution of judgment pending appeal which, from all indications, did not comply with the requirements of Section 2, Rule 39 of the Rules of Court. There was no good and special reason at all to justify the execution of judgment pending appeal because the protestee's winning margin was 149 votes while that of the protestant after the Court declared him a winner was only a margin of 154 votes. Clearly, the order of execution of judgment pending appeal was issued with grave abuse of discretion. For these reasons, protestee-appellant seeks to recover the following: 1. Actual damages representing attorney's fees for the new counsel who handled the Appeal and the Petition for Certiorari before the Court of Appeals . . . P372,500.00 2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P1.50 . . . P11,235.00

3. Actual expenses for xerox copying of ballots . . . P3,919.20 4. Actual damages for loss of salary and other emoluments since March 1994 as per attached Certification issued by the Municipal Account of Kidapawan . . . P96,832.00 (up to October 1994 only) Under Article 2208 of the New Civil Code attorney's fees and expenses of litigation can be recovered (as actual damages) in the case of clearly unfounded civil action or proceeding. And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries and allowances (as damages) from elected officials who were later ousted, under the theory that persons elected has (sic) a right to compensation during their incumbency, the instant case is different. The protestee-appellant was the one elected. He was ousted not by final judgment bur by an order of execution pending appeal which was groundless and issued with grave abuse of discretion. Protestant-appellee occupied the position in an illegal manner as a usurper and, not having been elected to the office, but merely installed through a baseless court order, he certainly had no right to the salaries and emoluments of the office. Actual damages in the form of reimbursement for attorney's fees (P372,500.00), actual expenses for xerox copies (P15,154.00), unearned salary and other emoluments from March 1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00), totalled P557,110.00. To (sic) this amount, however, P300,000.00 representing that portion of attorney's fees denominated as success fee' must be deducted this being premised on a contingent event the happening of which was uncertain from the beginning. Moral damages and exemplary damages claimed are, of course, disallowed not falling within the purview of Section 259 of the Omnibus Election Code. It goes without saying that if the protestant-appellee fails to pay the actual damages of P257,110.00, the amount will be assessed, levied and collected from the bond of P500,000.00 which he put up before the Court as a condition for the issuance of the order of execution of judgment pending appeal. 22 Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The COMELEC en banc, however, did not find any new matter substantial in nature, persuasive in character or sufficiently provocative to compel reconsideration of said decision and accordingly affirmed in toto the said decision. Hence, this petition raises, among others, the issue now solely remaining and in need of final adjudication in view of the mootness of the other issues anent petitioner's right to the contested office the term for which has already expired.

We have painstakingly gone over the records of this case and we can attribute to petitioner no breach of contract or quasi-contract; or tortious act nor crime that may make him liable for actual damages. Neither has private respondent been "able to point out to a specific provision of law authorizing a money claim for election protest expenses against the losing party." 23 We find respondent COMELEC's reasoning in awarding the damages in question to be fatally flawed. The COMELEC found the election protest filed by the petitioner to be clearly unfounded because its own appreciation of the contested ballots yielded results contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a reasonable observation not without basis, it is nonetheless fallacious to conclude a malicious intention on the part of petitioner to molest private respondent on the basis of what respondent COMELEC perceived as an erroneous ruling of the trial court. In other words, the actuations of the trial court, after the filing of a case before it, are its own, and any alleged error on its part does not, in the absence of clear proof, make the suit "clearly unfounded" for which the complainant ought to be penalized. Insofar as the award of protest expenses and attorney's fees are concerned, therefore we find them to have been awarded by respondent COMELEC without basis, the election protest not having been a clearly unfounded one under the aforementioned circumstances. Respondent COMELEC also found the order granting execution of judgment pending appeal to be defective because of alleged non-compliance with the requirement that there be a good and special reason 24 to justify execution pending appeal. We, however, find that the trial court acted judiciously in the exercise of its prerogatives under the law in issuing the order granting execution pending appeal. First, it should be noted that the applicability of the provisions of the Rules of Court, relating to execution pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de Jesus 25 that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order executions pending appeal upon good reasons stated in a special order, may be made to apply by analogy or suppletorily to election contests decided by them." 26 It is not disputed that petitioner filed a bond in the amount of P500,000.00 as required under the Rules of Court. It is also now a settled rule that "as much recognition should be given to the value of the decision of a judicial body as a basis for the right to assume office as that given by law to the proclamation made by the Board of Canvassers." 27 . . . Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed . . . the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield extraneous considerations . . . the board must act

summarily, practically raising (sic) against time, while, on the other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment . . . . 28 Without evaluating the merits of the trial court's actual appreciation of the ballots contested in the election protest, we note on the face of its decision that the trial court relied on the findings of the National Bureau of Investigation (NBI) handwriting experts which findings private respondent did not even bother to rebut. We thus see no reason to disregard the presumption of regularity in the performance of official duty on the part of the trial court judge. Capping this combination of circumstances which impel the grant of immediate execution is the undeniable urgency involved in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so the trial court reasonably perceived execution pending appeal to be warranted and justified. Anyway, the bond posted by petitioner could cover any damages suffered by any aggrieved party. It is true that mere posting of a bond is not enough reason to justify execution pending appeal, but the nexus of circumstances aforechronicled considered together and in relation to one another, is the dominant consideration for the execution pending appeal. 29 Finally, we deem the award of salaries and other emoluments to be improper and lacking legal sanction. Respondent COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez vs. Tan 30 because while in that case the official ousted was the one proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner only by the trial court and assumed office by virtue of an order granting execution pending appeal. Again, respondent COMELEC sweepingly concluded, in justifying the award of damages, that since petitioner was adjudged the winner in the elections only by the trial court and assumed the functions of the office on the strength merely of an order granting execution pending appeal, the petitioner occupied the position in an illegal manner as a usurper. We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act officially without any color of right, 31 the petitioner exercised the duties of an elective office under color of election thereto. 32 It matters not that it was the trial court and not the COMELEC that declared petitioner as the winner, because both, at different stages of the electoral process, have the power to so proclaim winners in electoral contests. At the risk of sounding repetitive, if only to emphasize this point, we must reiterate that the decision of a judicial body is no less a basis than the proclamation made by the COMELEC-convened Board of Canvassers for a winning candidate's right to assume office, for both are

undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in good faith, has had possession of the office and had discharged the duties pertaining thereto" 33 and is thus "legally entitled to the emoluments of the office." 34 To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual and compensatory damages in accordance with law. The victorious party in an election case cannot be indemnified for expenses which he has incurred in an electoral contest in the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing party. Evidently, if any damage had been suffered by private respondent due to the execution of judgment pending appeal, that damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law provides no remedy. 35 WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision dated May 5, 1995 that private respondent Joseph Evangelista is the winner in the election for mayor of the Municipality of Kidapawan, North Cotabato, that portion of the decision is deemed moot and academic because the term of office for mayor has long expired. That portion of the decision awarding actual damages to private respondent Joseph Evangelista is hereby declared null and void for having been issued in grave abuse of discretion and in excess of jurisdiction. SO ORDERED. G.R. No. 111243 May 25, 1994 JESUS ARMANDO A.R. TARROSA, petitioner, vs. GABRIEL C. SINGSON and HON. SALVADOR M. ENRIQUEZ III, respondents Marlon B. Llaunder for petitioner. QUIASON, J.: This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the appointment of respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for not having been confirmed by the Commission on Appointments. The petition seeks to enjoin respondent Singson from the performance of his functions as such official until his appointment is confirmed by the Commission on Appointments and respondent Salvador M. Enriquez, Secretary of Budget and Management, from disbursing public funds in payment of the salaries and emoluments of respondent Singson. I Respondent Singson was appointed Governor of the Bangko Sentral by President Fidel V. Ramos on July 2, 1993, effective on July 6, 1993 (Rollo, p. 10). Petitioner argues that respondent Singson's appointment is null and void since it was not submitted for confirmation to the Commission on Appointments. The petition is

anchored on the provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the Central Monetary Authority of the Philippines. Section 6, Article II of R.A. No. 7653 provides: Sec. 6. Composition of the Monetary Board. The powers and functions of the Bangko Sentral shall be exercised by the Bangko Sentral Monetary Board, hereafter referred to as the Monetary Board, composed of seven (7) members appointed by the President of the Philippines for a term of six (6) years. The seven (7) members are: (a) The Governor of the Bangko Sentral, who shall be the Chairman of the Monetary Board. The Governor of the Bangko Sentral shall be head of a department and his appointment shall be subject to confirmation by the Commission on Appointments. Whenever the Governor is unable to attend a meeting of the Board, he shall designate a Deputy Governor to act as his alternate: Provided, That in such event, the Monetary Board shall designate one of its members as acting Chairman . . . (Emphasis supplied). In their comment, respondents claim that Congress exceeded its legislative powers in requiring the confirmation by the Commission on Appointments of the appointment of the Governor of the Bangko Sentral. They contend that an appointment to the said position is not among the appointments which have to be confirmed by the Commission on Appointments, citing Section 16 of Article VII of the Constitution which provides that: Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of department, agencies, commissions, or boards . . . (Emphasis supplied). Respondents also aver that the Bangko Sentral has its own budget and accordingly, its budgetary requirements are not subject to the provisions of the General Appropriations Act. We dismiss the petition. II The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of respondent Singson and alleges that the latter is unlawfully holding or exercising the powers of Governor of the Bangko Sentral

(Cf. Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a special civil action can only be commenced by the Solicitor General or by a "person claiming to be entitled to a public office or position unlawfully held or exercised by another" (Revised Rules of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]). In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who did not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could not bring the action for quo warranto to oust the respondent from said office as a mere usurper. Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question of title to an office, which must be resolved in a quo warranto proceeding, may not be determined in a suit to restrain the payment of salary to the person holding such office, brought by someone who does not claim to be the one entitled to occupy the said office. It is obvious that the instant action was improvidently brought by petitioner. To uphold the action would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machinery (See Roosevelt v. Draper, 7 Abb. Pr. 108, 23 N.Y. 218). Its capstone having been removed, the whole case of petitioner collapses. Hence, there is no need to resolve the question of whether the disbursement of public funds to pay the salaries and emoluments of respondent Singson can be enjoined. Likewise, the Court refrains from passing upon the constitutionality of Section 6, R.A. No. 7653 in deference to the principle that bars a judicial inquiry into a constitutional question unless the resolution thereof is indispensable for the determination of the case (Fernandez v. Torres, 215 SCRA 489 [1992]). However for the information of all concerned, we call attention to our decision in Calderon v. Carale, 208 SCRA 254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that Congress cannot by law expand the confirmation powers of the Commission on Appointments and require confirmation of appointment of other government officials not expressly mentioned in the first sentence of Section 16 of Article VII of the Constitution. WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.

G.R. No. 131977 February 4, 1999 PEDRO MENDOZA, petitioner, vs. RAY ALLAS and GODOFREDO OLORES, respondents. PUNO, J.: Before us, petitioner prays for the execution of the decision of the trial court 1 granting his petition for quo warranto which ordered his reinstatement as Director III, Customs Intelligence and Investigation Service, and the payment of his back salaries and benefits. Petitioner Pedro Mendoza joined the Bureau of Customs in 1972. He held the positions of Port Security Chief from March 1972 to August 1972, Deputy Commissioner of Customs from August 1972 to September 1975, Acting Commissioner of Customs from September 1975 to April 1977 and Customs Operations Chief I from October 1987 to February 1988. 2 On March 1, 1988, he was appointed Customs Service Chief of the Customs Intelligence and Investigation Service (CIIS). In 1989, the position of Customs Service Chief was reclassified by the Civil Service as "Director III" in accordance with Republic Act No. 6758 and National Compensation Circular No. 50. Petitioner's position was thus categorized as "Director III, CIIS" and he discharged the function and duties of said office. On April 22, 1993, petitioner was temporarily designated as Acting District Collector, Collection District X, Cagayan de Oro City. In his place, respondent Ray Allas was appointed as "Acting Director III" of the CIIS. Despite petitioner's new assignment as Acting District Collector, however, he continued to receive the salary and benefits of the position of Director III. In September 1994, petitioner received a letter from Deputy Customs Commissioner Cesar Z. Dario, informing him of his termination from the Bureau of Customs, in view of respondent Allas' appointment as Director III by President Fidel V. Ramos. The pertinent portion of the letter reads: Effective March 4, 1994, Mr. Ray Allas was appointed Director III by President Fidel V. Ramos and as a consequence, [petitioner's] services were terminated without prejudice to [his] claim for all government benefits due [him]. Attached to the letter was the appointment of respondent Ray Allas as "Director III, CIIS, Bureau of Customs, vice Pedro Mendoza." Petitioner wrote the Customs Commissioner demanding his reinstatement with full back wages and without loss of seniority rights. No reply was made. On December 2, 1994, petitioner filed a petition for quo warranto against respondent Allas before the Regional Trial Court, Paranaque, Branch 258. 3 The case was tried and on September 11, 1995, a decision was rendered granting the petition. The court found that petitioner was illegally terminated from office without due process of law and in violation of his security of tenure, and that as he was deemed not to have vacated his office, the appointment of respondent Allas to the same office was

void ab initio. The court ordered the ouster of respondent Allas from the position of Director III, and at the same time directed the reinstatement of petitioner to the same position with payment of full back salaries and other benefits appurtenant thereto. Respondent Allas appealed to the Court of Appeals. On February 8, 1996, while the case was pending before said court, respondent Allas was promoted by President Ramos to the position of Deputy Commissioner of Customs for Assessment and Operations. As a consequence of this promotion, Petitioner moved to dismiss respondent's appeal as having been rendered moot and academic. The Court of Appeals granted the motion and dismissed the case accordingly. The order of dismissal became final and entry of judgment was made on March 19, 1996. 4 On May 9, 1996, petitioner filed with the court a quo a Motion for Execution of its decision. On July 24, 1996, the court denied the motion on the ground that the contested position vacated by respondent Allas was now being occupied by respondent Godofredo Olores who was not a party to the quo warranto petition. 5 Petitioner filed a special civil action for certiorari and mandamus with the Court of Appeals questioning the order of the trial court. 6 On November 27, 1997, the Court of Appeals dismissed the petition. 7 Hence, this recourse. Petitioner claims that: The Court of Appeals grossly erred in holding that a writ of execution may no longer be issued, considering that respondent Olores who was not a party to the case now occupies the subject position. 8 The instant petition arose from a special civil action for quo warranto under Rule 66 of the Revised Rules of Court. Quo warranto is a demand made by the state upon some individual or corporation to show by what right they exercise some franchise or privilege appertaining to the state which, according to the Constitution and laws of the land, they cannot legally exercise except by virtue of a grant or authority from the state. 9 In other words, a petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege. 10 The action may be commenced for the Government by the Solicitor General or the fiscal 11 against individuals who usurp a public office, against a public officer whose acts constitute a ground for the forfeiture of his office, and against an association which acts as a corporation without being legally incorporated. 12 The action may also be instituted by an individual in his own name who claims to be entitled to the public office or position usurped or unlawfully held or exercised by another. 13 Where the action is filed by a private person, he must prove that he is entitled to the controverted position, otherwise respondent has a right to the undisturbed possession of the office. 14 If the court finds for the respondent, the judgment should simply state that the

respondent is entitled to the office. 15 If, however, the court finds for the petitioner and declares the respondent guilty of usurping, intruding into, or unlawfully holding or exercising the office, judgment may be rendered as follows: Sec. 10. Judgment where usurpation found. When the defendant is found guilty of usurping, intruding into, or unlawfully holding or exercising an office, position, right, privilege, or franchise, judgment shall be rendered that such defendant be ousted and altogether excluded therefrom, and that the plaintiff or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the office, position, right, privilege, or franchise of all the parties to the action as justice requires. If it is found that the respondent or defendant is usurping or intruding into the office, or unlawfully holding the same, the court may order: (1) The ouster and exclusion of the defendant from office; (2) The recovery of costs by plaintiff or relator; (3) The determination of the respective rights in and to the office, position, right, privilege or franchise of all the parties to the action as justice requires. 16 The character of the judgment to be rendered in quo warranto rests to some extent in the discretion of the court and on the relief sought. 17 In the case at bar, petitioner prayed for the following relief: WHEREFORE, it is respectfully prayed that respondent be ousted and altogether excluded from the position of Director III, Customs Intelligence and Investigation Service of the Bureau of Customs, and petitioner be seated to the position as the one legally appointed and entitled thereto. Other reliefs, just or equitable in the premises, are likewise prayed for. 18 In granting the petition, the trial court ordered that: WHEREFORE, viewed in the light of the foregoing, judgment is hereby rendered granting this petition for quo warranto by: 1. Ousting and excluding respondent Ray Allas from the position of Director III, Customs Intelligence and Investigation Service of the Bureau of Customs; and 2. Reinstating petitioner Pedro C. Mendoza, Jr. to the position of Director III, Customs Intelligence and Investigation Service of the Bureau of Customs with full back wages and other monetary benefits appurtenant thereto from the time they were withheld until reinstated. 19 The trial court found that respondent Allas usurped the

position of "Director III, Chief of the Customs Intelligence and Investigation Service." Consequently, the court ordered that respondent Allas be ousted from the contested position and that petitioner be reinstated in his stead. Although petitioner did not specifically pray for his back salaries, the court ordered that he be paid his "full back wages and other monetary benefits" appurtenant to the contested position "from the time they were withheld until reinstated." The decision of the trial court had long become final and executory, and petitioner prays for its execution. He alleges that he should have been reinstated despite respondent Olores' appointment because the subject position was never vacant to begin with. Petitioner's removal was illegal and he was deemed never to have vacated his office when respondent Allas was appointed to the same. Respondent Allas' appointment was null and void and this nullity allegedly extends to respondent Olores, his successor-in-interest. 20 Ordinarily, a judgment against a public officer in regard to a public right binds his successor in office. This rule, however, is not applicable in quo warranto cases. 21 A judgment in quo warranto does not bind the respondent's successor in office, even though such successor may trace his title to the same source. This follows from the nature of the writ of quo warranto itself. It is never directed to an officer as such, but always against the person to determine whether he is constitutionally and legally authorized to perform any act in, or exercise any function of the office to which he lays claim. 22 In the case at bar, the petition for quo warranto was filed by petitioner solely against respondent Allas. What was threshed out before the trial court was the qualification and right of petitioner to the contested position as against respondent Ray Allas, not against Godofredo Olores. The Court of Appeals did not err in denying execution of the trial court's decision. Petitioner has apprised this Court that he reached the compulsory retirement age of sixty-five (65) years on November 13, 1997. Reinstatement not being possible, petitioner now prays for the payment of his back salaries and other benefits from the time he was illegally dismissed until finality of the trial court's decision. 23 Respondent Allas cannot be held personally liable for petitioner's back salaries and benefits. He was merely appointed to the subject position by the President of the Philippines in the exercise of his constitutional power as Chief Executive. Neither can the Bureau of Customs be compelled to pay the said back salaries and benefits of petitioner. The Bureau of Customs was not a party to the petition for quo warranto. 24 IN VIEW WHEREOF, the petition is denied and the decision of the Court of Appeals in CA-G.R. SP No. 41801 is affirmed. SO ORDERED.

G.R. No. 156959 June 27, 2006 J/SR. SUPT. JOSUE G. ENGAO, Petitioner, vs. HONORABLE COURT OF APPEALS, DILG Secretary JOSE D. LINA, JR., and CHIEF SUPT. ARTURO W. ALIT, Respondents. DECISION GARCIA, J.: Assailed and sought to be set aside in this petition for review under Rule 45 of the Rules of Court with prayer for a temporary restraining order (TRO) and writ of preliminary mandatory injunction, are the following issuances of the Court of Appeals (CA) in CA-G.R. SP No. 72590, to wit: 1. Decision1 dated November 22, 2002, affirming an earlier decision of the Regional Trial Court (RTC) of Quezon City declaring the appointment of petitioner Sr. Supt. Josue G. Engao to the position of Chief, Bureau of Jail Management and Penology (BJMP), as null and void for petitioners failure to meet the minimum qualification standards set by the Civil Service Commission (CSC); and 2. Resolution2 dated January 21, 2003, denying petitioner's motion for reconsideration. Stripped to the bare essentials, the material facts may be stated as follows: Private respondent Arturo W. Alit occupied, since July 1999, the position of Jail/Chief Superintendent, Deputy Chief, Bureau of Jail Management and Penology (BJMP), Department of the Interior and Local Government (DILG). On March 29, 2001, he was designated Officer-in-Charge (OIC) of the Bureau in view of the resignation of then BJMP Director, P/Maj. Gen. Aquilino G. Jacob, Jr. Petitioner Josue G. Engao, on the other hand, held during the period material the position of Jail Senior Superintendent of the BJMP. Pursuant to Memorandum Circular No. 4 of the Office of the President, the Chief Directorate for Personnel of the BJMP submitted to the DILG Selection Board for Senior Executive Positions (SB-SEP) a seniority lineal list from which were culled the names of eligible candidates for the position of Director, BJMP. Of the eleven (11) candidates interviewed, the Board ranked private respondent Alit first, being the only one who fully met the CSC Qualification Standards for the position in question, more particularly, the one-year experience requirement as Chief Superintendent. Consequently, then DILG Secretary Jose D. Lina recommended the appointment of private respondent Alit to the interested position. However, despite Secretary Lina's recommendation, the President, on September 6, 2001, appointed petitioner Engao instead.3 After being sworn into office, Engao appeared to have assumed the post of BJMP Chief on September 27, 2001.4

On September 28, 2001, in the Regional Trial Court (RTC) of Quezon City, private respondent Alit instituted quo warranto proceedings against petitioner Engao claiming that the latters appointment was highly irregular and illegal due to his lack of the minimum qualifications required for the position. After due hearing, the trial court denied private respondent Alit's plea for a TRO and set the case for hearing on his application for prohibition and injunction. In a Memorandum5 of October 2, 2001, the Executive Secretary informed Secretary Lina that petitioner Engao's appointment as head of the BJMP was being held in abeyance pending resolution of the legal issues raised by the DILG involving his qualifications. Subsequently, the trial court, in an Order6 dated October 8, 2001, directed the Office of the President to take a definite stand as to whether or not it is appointing petitioner Engao as permanent BJMP Chief or retaining private respondent Alit as OIC thereof. In the same order, the trial court additionally directed as follows: In the interest of public service and in the exercise of judicial activism, a cease and desist order is hereby issued restraining both parties, Arturo W. Alit and Josue G. Engao from performing and discharging the duties of the Office of Director BJMP, and in order not to prejudice the operation and control of the said office, the Court hereby designate[s] Jose Lina in his capacity as Secretary of DILG to perform the duties of the Director, BJMP for a period of twenty (20) days. In the meantime, set the Application for Preliminary Injunction and Prohibition and Quo Warranto on October 24, 2001 at 8:30 A.M.7 In compliance with the aforequoted directive, Secretary Lina assumed the duties and functions of Director, BJMP. Eventually, the trial court rendered on October 29, 2001 judgment in favor of private respondent Alit, disposing as follows: Viewed from the foregoing considerations it appears that [petitioner] Engao does not possess the minimum qualifications required by law for the position of Director, Bureau of Jail Management and Penology (BJMP) and as such his appointment thereto is hereby declared null and void. There being no valid appointment to the contested position [respondent] Alit's prior designation as Officer-in-Charge, Bureau of Jail Management and Penology (BJMP) remains unless revoked by the President or a permanent and valid appointment is made. SO ORDERED.8 (Word in bracket added.) Following the trial courts denial of his motion for reconsideration, petitioner Engao elevated the case to the CA whereat his appellate recourse was docketed as CA-G.R. SP No. 72590. As stated at the outset hereof, the CA, in its decision9 of November 22, 2002, affirmed that of the trial court. With his motion for reconsideration having been denied by the appellate court in its equally challenged Resolution of

January 21, 2003, petitioner is now with us via this petition for review with prayer for a TRO and writ of preliminary injunction. In its Resolution of March 17, 2003, the Court issued a TRO enjoining public respondent DILG Secretary Jose D. Lina, Jr., his agents, representatives, or anyone acting in his behalf, from enforcing DILG Department Circular No. 2001-25 and performing the duties and functions as concurrent Director of the BJMP. Meanwhile, May 13, 2003 marked petitioner Engao's last day of government service, he having reached compulsory retirement age as of that date. Subsequently, President Gloria Macapagal-Arroyo appointed private respondent Alit BJMP Director. Petitioner Engao, in his Memorandum, raises eight issues, foremost of which are the following: 1.) Whether the prerogative of the President xxx to appoint persons of his/her trust and confidence to certain positions in government duly classified as presidential appointees can be declared null and void by the court; 2.) Whether a nominee to a presidential appointive position can validly maintain an action for quo warranto against the person appointed thereto by the President; 3.) Whether a mere nominee can acquire a vested right to an appointment to the contested post upon a court finding that the person appointed lacks the minimum qualifications; 4.) Whether the compulsory retirement of petitioner Engao has rendered this petition moot and academic; 5.) Whether petitioner Engao is entitled to salary differential, emoluments, rata, allowances, rank of director and all benefits attached to the position of Chief, BJMP, being unlawfully and arbitrarily deprived by public respondent DILG Secretary Lina; and 6.) Whether petitioner Engao is entitled to moral, nominal, exemplary and corrective damages as provided particularly in Articles 2218, 2219, 2220, 2221, 2222, 2223, and 2229 of the Civil Code due to the alleged deliberate, willful, arbitrary, baseless, unfounded and wrongful acts of private respondent Alit and public respondent DILG Secretary Lina. The petition must fail. Indeed, on issue No. 4 alone, the present petition must be dismissed for having become moot and academic due to supervening events, namely, the compulsory retirement of petitioner Engao from the service, and the appointment of private respondent Alit as Director of the BJMP. Since then, Alit has also taken his oath of office and has assumed and performed the duties of the position. Time and again, courts have refrained from even expressing an opinion in a case where the issues have become moot and academic, there being no more justiciable controversy to speak of, so that a determination thereof would be of no practical use or value.10

The suit commenced at the RTC was one for quo warranto, which, by its nature, is an action against the usurpation of a public office or position.11 The issue thereat thus turns on who, between petitioner Engao and private respondent Alit, is entitled to the position of BJMP Director. Petitioner Engao having retired in the meantime, and private respondent Alit having been subsequently appointed by President Gloria Macapagal-Arroyo to the contested position, all questions on the validity of the previous appointment of Engao have become moot. In his Memorandum, petitioner raised two additional issues, namely, his entitlement to salary differential, representation and transportation allowances (RATA), and other benefits which he allegedly lost due to the loss of the contested position, as well as damages owing to the alleged deliberate, arbitrary and wrongful acts of both the public and private respondents. Petitioners money claim allegedly arising from his failure to assume the position of Director, BJMP and damages is untenable. A public office is not a property within the context of the due process guarantee of the Constitution. There is no such thing as a vested interest in a public office, let alone an absolute right to hold it. Except constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in a public office or its salary.12 It is only when salary has already been earned or accrued that said salary becomes private property and entitled to the protection of due process. The right to salary and other emoluments arising from public employment is based on ones valid appointment or election to the office itself and accrues from the date of actual commencement of the discharge of official duties. As may be recalled, petitioner Engao, albeit lacking in qualifications, was nonetheless appointed as Director of the BJMP and appeared to have entered upon the performance of the duties of the position from September 27, 2001 to October 2, 2001 when the appointing authority recalled his appointment owing to some legal issues respecting his qualification. Subsequently, however, the appointment was peremptorily nullified. In all, therefore, petitioner Engano served as head of the BJMP for six (6) days only, but as a de facto officer at best. And while a de facto officer is entitled to some form of compensation, respondents Secretary Lina and Alit cannot be held personally liable for petitioners claim for salary, RA TA and other benefits.13 The BJMP cannot also be compelled to pay since it was not a party in the petition below for quo warranto, nor in the appellate proceedings before the CA. 14 Neither is petitioner Engao entitled to any damages. As it were, the records are bereft of any showing that either respondent Alit or Secretary Lina acted in a willful, arbitrary, baseless, or wrongful manner, as Engao alleges. It is obvious that both, in good faith, believed that Engao was unqualified for the contested position, as was subsequently found to be the case by the trial court and then by the CA. Secretary Lina's assumption of the post in a

temporary capacity during the pendency of the quo warranto suit was valid as it was, in fact, pursuant to the trials court order. Private respondent Alit, needless to stress, was also well within his rights in challenging petitioner's eligibility to the post. Further, the two courts below were correct in asserting their respective jurisdictions over void appointments. While an appointment is an essentially discretionary executive power, it is subject to the limitation that the appointee should possess none of the disqualifications but all the qualifications required by law.15 Where the law prescribes certain qualifications for a given office or position, courts may determine whether the appointee has the requisite qualifications, absent which, his right or title thereto may be declared void.16 WHEREFORE, this petition is DENIED. Cost against petitioner. SO ORDERED.

[G. R. No. 140335. December 13, 2000] THELMA P. GAMINDE, petitioner, vs. COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN, Hon. RAUL C. FLORES and EMMANUEL M. DALMAN, respondents. DECISION PARDO, J.: The Case The case is a special civil action of certiorari seeking to annul and set aside two decisions of the Commission on Audit ruling that petitioners term of office as Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as set forth in her appointment paper. The Facts On June 11, 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde, ad interim, Commissioner, Civil Service Commission. She assumed office on June 22, 1993, after taking an oath of office. On September 07, 1993, the Commission on Appointment, Congress of the Philippines confirmed the appointment. We quote verbatim her appointment paper: 11 June 1993 Madam: Pursuant to the provisions of existing laws, you are hereby appointed, ad interim, COMMISSIONER, CIVIL SERVICE COMMISSION, for a term expiring February 2, 1999. By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office.[1] However, on February 24, 1998, petitioner sought clarification from the Office of the President as to the expiry date of her term of office. In reply to her request, the Chief Presidential Legal Counsel, in a letter dated April 07, 1998[2] opined that petitioners term of office would expire on February 02, 2000, not on February 02, 1999. Relying on said advisory opinion, petitioner remained in office after February 02, 1999. On February 04, 1999, Chairman Corazon Alma G. de Leon, wrote the Commission on Audit requesting opinion on whether or not Commissioner Thelma P. Gaminde and her co-terminous staff may be paid their salaries notwithstanding the expiration of their appointments on February 02, 1999. On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that the term of Commissioner Gaminde has expired on February 02, 1999 as stated in her appointment conformably with the constitutional intent.[3] Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of disallowance No. 99-002-101 (99), disallowing in audit the salaries and emoluments pertaining to petitioner and her co-terminous staff, effective February 02, 1999.[4]

On April 5, 1999, petitioner appealed the disallowance to the Commission on Audit en banc. On June 15, 1999, the Commission on Audit issued Decision No. 99-090 dismissing petitioners appeal. The Commission o n Audit affirmed the propriety of the disallowance, holding that the issue of petitioners term of office may be properly addressed by mere reference to her appointment paper which set the expiration date on February 02, 1999, and that the Commission is bereft of power to recognize an extension of her term, not even with the implied acquiescence of the Office of the President.[5] In time, petitioner moved for reconsideration; however, on August 17, 1999, the Commission on Audit denied the motion in Decision No. 99-129.[6] Hence, this petition.[7] The Issue The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as stated in the appointment paper, or on February 02, 2000, as claimed by her. The Courts Ruling The term of office of the Chairman and members of the Civil Service Commission is prescribed in the 1987 Constitution, as follows: Section 1 (2). The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.[8] The 1973 Constitution introduced the first system of a regular rotation or cycle in the membership of the Civil Service Commission. The provision on the 1973 Constitution reads: x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term of seven years without reappointment. Of the Commissioners first appointed, one shall hold office for seven years, another for five years, and the third for three years. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor.[9] Actually, this was a copy of the Constitutional prescription in the amended 1935 Constitution of a rotational system for the appointment of the Chairman and members of the Commission on Elections. The Constitutional amendment creating an independent Commission on Elections provides as follows: Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the

Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution."[10] In Republic vs. Imperial,[11] we said that the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a common date, and, (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term.[12] Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms.[13] Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 02, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter.[14] In the law of public officers, there is a settled distinction between term and tenure. [T]he term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent.[15] In concluding that February 02, 1987 is the proper starting point of the terms of office of the first appointees to the Constitutional Commissions of a staggered 7-5-3 year terms, we considered the plain language of Article IX (B), Section 1 (2), Article IX (C), Section 1 (2) and Article IX (D), Section 1 (2) of the 1987 Constitution that uniformly prescribed a seven-year term of office for Members of the Constitutional Commissions, without re-appointment, and for the first appointees terms of seven, five and three years, without re-appointment. In no case shall any Member be appointed or designated in a temporary or acting capacity. There is no need to expressly state the beginning of the term of office as this is understood to coincide with the effectivity of the Constitution upon its ratification (on February 02, 1987).

On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides: SEC. 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution.[16] What the above quoted Transitory Provisions contemplate is tenure not term of the incumbent Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, who shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. The term unless imports an exception to the general rule.[17] Clearly, the transitory provisions mean that the incumbent members of the Constitutional Commissions shall continue in office for one year after the ratification of this Constitution under their existing appointments at the discretion of the appointing power, who may cut short their tenure by: (1) their removal from office for cause; (2) their becoming incapacitated to discharge the duties of their office, or (3) their appointment to a new term thereunder, all of which events may occur before the end of the one year period after the effectivity of the Constitution. However, the transitory provisions do not affect the term of office fixed in Article IX, providing for a seven-five-three year rotational interval for the first appointees under this Constitution. At the time of the adoption of the 1987 Constitution, the incumbent Chairman and members of the Civil Service Commission were the following: (1) Chairperson Celerina G. Gotladera. She was initially appointed as OIC Chairman on March 19, 1986, and appointed chairman on December 24, 1986, which she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On June 25, 1986, President Corazon C. Aquino appointed him Commissioner, without any term. He assumed office on July 9, 1986, and served until March 31, 1987, when he filed a certificate of candidacy for the position of Congressman, 2nd District, Leyte, thereby vacating his position as Commissioner. His tenure was automatically cut-off by the filing of his certificate of candidacy. (3) Atty. Mario D. Yango. On January 22, 1985, President Ferdinand E. Marcos appointed him Commissioner for a term expiring January 25, 1990. He served until February 2, 1988, when his term ended in virtue of the transitory provisions referred to. On May 30, 1988, President Aquino re-appointed him to a new three-year term and served until May 31, 1991, exceeding his lawful term, but not exceeding the maximum of seven years, including service before the ratification of the 1987 Constitution. Under this factual milieu, it was only Commissioner Yango who was extended a new term under the 1987 Constitution. The period consumed between the

start of the term on February 02, 1987, and his actual assumption on May 30, 1988, due to his belated appointment, must be counted against him. Given the foregoing common starting point, we compute the terms of the first appointees and their successors to the Civil Service Commission under the 1987 Constitution by their respective lines, as follows: First line : Chairman seven-year term. February 02, 1987 to February 01, 1994. On January 30, 1988, the President nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service Commission. On March 02, 1988, the Commission on Appointments confirmed the nomination. She assumed office on March 04, 1988. Her term ended on February 02, 1994. She served as de facto Chairman until March 04, 1995. On March 05, 1995, the President appointed then Social Welfare Secretary Corazon Alma G. de Leon, Chairman, Civil Service Commission, to a regular seven-year term. This term must be deemed to start on February 02, 1994, immediately succeeding her predecessor, whose term started on the common date of the terms of office of the first appointees under the 1987 Constitution. She assumed office on March 22, 1995, for a term expiring February 02, 2001. This is shown in her appointment paper, quoted verbatim as follows: March 5, 1995 Madam: Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the Constitution, you are hereby appointed, ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a term expiring February 2, 2001. By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. (Sgd.) FIDEL V. RAMOS Second line : Commissioner Five-year term. February 02, 1987 to February 02, 1992. On January 30, 1988, the President nominated Atty. Samilo N. Barlongay Commissioner, Civil Service Commission. On February 17, 1988, the Commission on Appointments, Congress of the Philippines, confirmed the nomination. He assumed office on March 04, 1988. His term ended on February 02, 1992. He served as de facto Commissioner until March 04, 1993. On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner, Civil Service Commission, for a term expiring February 02, 1999.[18] This terminal date is specified in her appointment paper. On September 07, 1993, the Commission on Appointments confirmed the appointment. She accepted the appointment and assumed office on June 22, 1993. She is bound by the term of the appointment she accepted, expiring February 02, 1999. In this connection, the letter dated April 07, 1998, of Deputy Executive Secretary Renato C. Corona[19] clarifying that her term would expire on February 02, 2000, was in error. What was submitted to the Commission on Appointments was a nomination for a term expiring on February 02,

1999. Thus, the term of her successor[20] must be deemed to start on February 02, 1999, and expire on February 02, 2006. Third line : Commissioner Three-year term. February 02, 1987 to February 02, 1990. Atty. Mario D. Yango was incumbent commissioner at the time of the adoption of the 1987 Constitution. His extended tenure ended on February 02, 1988. In May, 1988, President Corazon C. Aquino appointed him Commissioner, Civil Service Commission to a new three-year term thereunder. He assumed office on May 30, 1988. His term ended on February 02, 1990, but served as de facto Commissioner until May 31, 1991. On November 26, 1991, the President nominated Atty. Ramon P. Ereeta as Commissioner, Civil Service Commission. On December 04, 1991, the Commission on Appointments confirmed the nomination. He assumed office on December 12, 1991, for a term expiring February 02, 1997.[21] Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997, President Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner, Civil Service Commission, for a term expiring February 02, 2004. He assumed office on February 11, 1997. Thus, we see the regular interval of vacancy every two (2) years, namely, February 02, 1994, for the first Chairman,[22] February 02, 1992, for the first five-year term Commissioner,[23] and February 02, 1990, for the first three-year term Commissioner.[24] Their successors must also maintain the two year interval, namely: February 02, 2001, for Chairman;[25] February 02, 1999, for Commissioner Thelma P. Gaminde, and February 02, 1997, for Commissioner Ramon P. Ereeta, Jr. The third batch of appointees would then be having terms of office as follows: First line : Chairman, February 02, 2001 to February 02, 2008; Second line: Commissioner, February 02, 1999 to February 02, 2006;[26] and, Third line: Commissioner, February 02, 1997 to February 02, 2004,[27] thereby consistently maintaining the two-year interval. The line of succession, terms of office and tenure of the Chairman and members of the Civil Service Commission may be outlined as follows:[28] Chairman Term Tenure (7-year original) Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to Feb. 02, 1994 March 08, 1995 De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995 to (incumbent) Feb. 02, 2001 Feb. 02, 2001 _______ - 3rd appointee Feb. 02, 2001 to Feb. 02, 2008 2nd Member Term Tenure (5-year original)

Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988 to Feb. 02, 1992 March 04, 1993 Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to Feb. 02, 1999 Feb. 02, 2000 Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to (incumbent) Feb. 02, 2006 Feb. 02, 2006 3rd Member Term Tenure (3-year original) Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to Feb. 02, 1990 May 31, 1991 Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to Feb. 02, 1997 Feb. 02, 1997 Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to (incumbent) Feb. 02, 2004 Feb. 02, 2004 The Fallo WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as Commissioner, Civil Service Commission, under an appointment extended to her by President Fidel V. Ramos on June 11, 1993, expired on February 02, 1999. However, she served as de facto officer in good faith until February 02, 2000, and thus entitled to receive her salary and other emoluments for actual service rendered. Consequently, the Commission on Audit erred in disallowing in audit such salary and other emoluments, including that of her co-terminous staff. ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they disallow the salaries and emoluments of Commissioner Thelma P. Gaminde and her coterminous staff during her tenure as de facto officer from February 02, 1999, until February 02, 2000. This decision shall be effective immediately. No costs. SO ORDERED.

G. R. No. 156982 September 8, 2004 NATIONAL AMNESTY COMMISSION, petitioner, vs. COMMISSION ON AUDIT, JUANITO G. ESPINO, Director IV, NCR, Commission on Audit, and ERNESTO C. EULALIA, Resident Auditor, National Amnesty Commission. respondents. DECISION CORONA, J.: This petition for review1 seeks to annul the two decisions of respondent Commission on Audit (COA)2 dated July 26, 20013 and January 30, 2003,4 affirming the September 21, 1998 ruling5 of the National Government Audit Office (NGAO). The latter in turn upheld Auditor Ernesto C. Eulalia's order disallowing the payment of honoraria to the representatives of petitioner's ex officio members, per COA Memorandum No. 97-038. Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994 by then President Fidel V. Ramos through Proclamation No. 347. The NAC is tasked to receive, process and review amnesty applications. It is composed of seven members: a Chairperson, three regular members appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local Government as ex officio members.6 It appears that after personally attending the initial NAC meetings, the three ex officio members turned over said responsibility to their representatives who were paid honoraria beginning December 12, 1994. However, on October 15, 1997, NAC resident auditor Eulalia disallowed on audit the payment of honoraria to these representatives amounting to P255,750 for the period December 12, 1994 to June 27, 1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the NGAO upheld the auditor's order and notices of disallowance were subsequently issued to the following:7 REPRE SENTA TIVES 1. 2. 3. 4. 5. 6. Cesar Averilla Department of National Defense Ramon Martinez Department of National Defense Cielito Mindaro, Department of Justice Purita Deynata Department of Justice Alberto Bernardo Department of the Interior And Local Government Stephen Villaflor Department of the Interior and Local Government

7.

Artemio Aspiras Department of Justice

Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules and Regulations of Proclamation No. 347), which was approved by then President Joseph Estrada on October 19, 1999. Section 1, Rule II thereof provides: Section 1, Composition - The NAC shall be composed of seven (7) members: a) A Chairperson who shall be appointed by the President; b) Three (3) Commissioners who shall be appointed by the President; c) Three (3) Ex-officio Members 1. Secretary of Justice 2. Secretary of National Defense 3. Secretary of the Interior and Local Government The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law. (Emphasis supplied) Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident auditor and the NGAO disallowing payment of honoraria to the ex officio members' representatives, to no avail. Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed grave abuse of discretion in: (1) implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2 of the Civil Code;AMOUNT (2) invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance of honoraria under said Memorandum; P 2,500.00 (3) applying the Memorandum to the NAC ex officio members' representatives who were all appointive officials with ranks below that of an Assistant Secretary; 73,750.00 (4) interpreting laws and rules outside of its mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void, and (5) disallowing the payment of 18,750.00 honoraria on the ground of lack of authority of representatives to attend the NAC meetings in behalf of the ex officio members.8 62,000.00 We hold that the position of petitioner NAC is against the law and jurisprudence. The COA is correct that there is no 71,250.00 legal basis to grant per diem, honoraria or any allowance whatsoever to the NAC ex officio members' official representatives. 26,250.00 The Constitution mandates the Commission on Audit to ensure that the funds and properties of the government

are validly, efficiently and conscientiously used. Thus, Article IX-D of the Constitution ordains the COA to exercise exclusive and broad auditing powers over all government entities or trustees, without any exception: Section 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law of the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. (2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, inexpensive, extravagant, or unconscionable expenditures, or uses of government funds and properties. Section 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. (Emphasis supplied). It is in accordance with this constitutional mandate that the COA issued Memorandum No. 97-038 on September 19, 1997: COMMISSION ON AUDIT MEMORANDUM NO. 97-038 SUBJECT: Implementation of Senate Committee Report No. 509, Committee on Accountability of Public Officers and Investigations and Committee on Civil Service and Government Reorganization. The Commission received a copy of Senate Committee Report No. 509 urging the Commission on Audit to immediately cause the disallowance of any payment of any form of additional compensation

or remuneration to cabinet secretaries, their deputies and assistants, or their representatives, in violation of the rule on multiple positions, and to effect the refund of any and all such additional compensation given to and received by the officials concerned, or their representatives, from the time of the finality of the Supreme Court ruling in Civil Liberties Union v. Executive Secretary to the present. In the Civil Liberties Union case, the Supreme Court ruled that Cabinet Secretaries, their deputies and assistants may not hold any other office or employment. It declared Executive Order 284 unconstitutional insofar as it allows Cabinet members, their deputies and assistants to hold other offices in addition to their primary office and to receive compensation therefor. The said decision became final and executory on August 19, 1991. In view thereof, all unit heads/auditors/team leaders of the national government agencies and government owned or controlled corporations which have effected payment of subject allowances, are directed to implement the recommendation contained in the subject Senate Committee Report by undertaking the following audit action: 1. On accounts that have not been audited and settled under certificate of settlements and balances on record from August 19, 1991 to present - to immediately issue the Notices of disallowance and corresponding certificate of settlements and balances. 2. On accounts that have been audited and settled under certificate of settlements and balances on record - to review and re-open said accounts, issue the corresponding notices of disallowance, and certify a new balance thereon. It is understood that the re-opening of accounts shall be limited to those that were settled within the prescriptive period of three (3) years prescribed in Section 52 of P.D. 1445. 3. On disallowances previously made on these accounts - to submit a report on the status of the disallowances indicating whether those have been refunded/settled or have become final and executory and the latest action taken by the Auditor thereon. All auditors concerned shall ensure that all documents evidencing the disallowed payments are kept intact on file in their respective offices. Any problem/issue arising from the implementation of this Memorandum shall be brought promptly to the attention of the Committee created under COA Officer Order No. 97-698 thru the Director concerned, for immediate resolution. An initial report on the implementation of this Memorandum shall be submitted to the Directors concerned not later than October 31, 1997. Thereafter, a quarterly progress report on the status of

disallowances made shall be submitted, until all the disallowances shall have been enforced. The Committee created under COA Office Order No. 97-698, dated September 10, 1997, shall supervise the implementation of this Memorandum which shall take effect immediately and shall submit a consolidated report thereon in response to the recommendation of the Senate Committee on Accountability of Public Officers and Investigation and Committee on Civil Service and Government Reorganization.9 (Emphasis supplied) Contrary to petitioner's claim, COA Memorandum No. 97-038 does not need, for validity and effectivity, the publication required by Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication. We clarified this publication requirement in Taada vs. Tuvera:10 [A]ll statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (Emphasis supplied.) COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of instruction which does not need publication to be effective and valid. It is not an implementing rule or regulation of a statute but a directive issued by the COA to its auditors to enforce the self-executing prohibition imposed by Section 13, Article VII of the Constitution on the President and his official family, their deputies and assistants, or their representatives from holding multiple offices and receiving double compensation. Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the occasion to categorically explain this constitutional prohibition in Civil Liberties Union vs. The Executive Secretary:11

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which provides as follows: "Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office." xxxxxxxxx [D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: "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 corporation or their subsidiaries." We rule in the negative. xxxxxxxxx But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. xxxxxxxxx Thus, 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. This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. . . . xxxxxxxxx The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. xxxxxxxxx [T]he prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise 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." An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority. xxxxxxxxx The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. x x x xxxxxxxxx [E]x-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the

contemplation of the constitutional prohibition... (Emphasis supplied). Judicial decisions applying or interpreting the laws or the Constitution, such as the Civil Liberties Union doctrine, form part of our legal system.12 Supreme Court decisions assume the same authority as valid statutes.13 The Court's interpretation of the law is part of that law as of the date of enactment because its interpretation merely establishes the contemporary legislative intent that the construed law purports to carry into effect.14 COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right of any individual, except those provided for under the Constitution. Hence, publication of said Memorandum is not required for it to be valid, effective and enforceable. In Civil Liberties Union, we elucidated on the two constitutional prohibitions against holding multiple positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees against holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession, business or financial interest, whether government or private, unless allowed by the Constitution. The NAC ex officio members' representatives who were all appointive officials with ranks below Assistant Secretary are covered by the two constitutional prohibitions. First, the NAC ex officio members' representatives are not exempt from the general prohibition because there is no law or administrative order creating a new office or position and authorizing additional compensation therefor. Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the government and receiving additional or double compensation: SEC. 54. Limitation on Appointment. - (1) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. xxxxxxxxx (3) 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. xxxxxxxxx SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument,

office, or title of any kind form any foreign state. Pensions and gratuities shall not be considered as additional, double or indirect compensation. RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument. The representatives in fact assumed their responsibilities not by virtue of a new appointment but by mere designation from the ex officio members who were themselves also designated as such. There is a considerable difference between an appointment and designation. An appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office; a designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment.15 Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis of an employee's right to claim the salary attached thereto is a duly issued and approved appointment to the position,16 and not a mere designation. Second, the ex officio members' representatives are also covered by the strict constitutional prohibition imposed on the President and his official family. Again, in Civil Liberties Union, we held that cabinet secretaries, including their deputies and assistants, who hold positions in ex officio capacities, are proscribed from receiving additional compensation because their services are already paid for and covered by the compensation attached to their principal offices. Thus, in the attendance of the NAC meetings, the ex officio members were not entitled to, and were in fact prohibited from, collecting extra compensation, whether it was called per diem, honorarium, allowance or some other euphemism. Such additional compensation is prohibited by the Constitution. Furthermore, in de la Cruz vs. COA17 and Bitonio vs. COA,18 we upheld COA's disallowance of the payment of honoraria and per diems to the officers concerned who sat as ex officio members or alternates. The agent, alternate or representative cannot have a better right than his principal, the ex officio member. The laws, rules, prohibitions or restrictions that cover the ex officio member apply with equal force to his representative. In short, since the ex officio member is prohibited from receiving additional compensation for a position held in an ex officio capacity, so is his representative likewise restricted. The Court also finds that the re-opening of the NAC accounts within three years after its settlement is within COA's jurisdiction under Section 52 of Presidential Decree No. 1445, promulgated on June 11, 1978: SECTION 52. Opening and revision of settled accounts. (1) At any time before the expiration of three years after the settlement of any account by an auditor, the

Commission may motu propio review and revise the account or settlement and certify a new balance. More importantly, the Government is never estopped by the mistake or error on the part of its agents.19 Erroneous application and enforcement of the law by public officers do not preclude subsequent corrective application of the statute. In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void, the COA ruled that: Petitioner further contends that with the new IRR issued by the NAC authorizing the ex-officio members to designate representatives to attend commission meetings and entitling them to receive per diems, honoraria and other allowances, there is now no legal impediment since it was approved by the President. This Commission begs to disagree. Said provision in the new IRR is null and void for having been promulgated in excess of its rule-making authority. Proclamation No. 347, the presidential issuance creating the NAC, makes no mention that representatives of ex-officio members can take the place of said ex-officio members during its meetings and can receive per diems and allowances. This being the case, the NAC, in the exercise of its quasi-legislative powers, cannot add, expand or enlarge the provisions of the issuance it seeks to implement without committing an ultra vires act.20 We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely provides that: The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law. (Emphasis supplied). The problem lies not in the administrative order but how the NAC and the COA interpreted it. First, the administrative order itself acknowledges that payment of allowances to the representatives must be authorized by the law, that is, the Constitution, statutes and judicial decisions. However, as already discussed, the payment of such allowances is not allowed, prohibited even. Second, the administrative order merely allows the ex officio members to designate their representatives to NAC meetings but not to decide for them while attending such meetings. Section 4 of the administrative order categorically states: Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a quorum consisting of at least four members. Thus, although the administrative order does not preclude the representatives from attending the NAC meetings, they may do so only as guests or witnesses to the proceedings. They cannot substitute for the ex officio members for purposes of determining quorum, participating in deliberations and making decisions.

Lastly, we disagree with NAC's position that the representatives are de facto officers and as such are entitled to allowances, pursuant to our pronouncement in Civil Liberties Union: "where there is no de jure officer, a de facto officer, who in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensation attached to the office." A de facto officer "derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. (He is) one who is in possession of an office and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer."21 The representatives cannot be considered de facto officers because they were not appointed but were merely designated to act as such. Furthermore, they are not entitled to something their own principals are prohibited from receiving. Neither can they claim good faith, given the express prohibition of the Constitution and the finality of our decision in Civil Liberties Union prior to their receipt of such allowances. WHEREFORE the petition is hereby DISMISSED for lack of merit. SO ORDERED.