Laurel v.

Desierto
GR No. 145368, April 12, 2002

Facts:

Petitioner Vice-President Salvador Laurel was appointed as the head of the National Centennial
Commission, a body constituted for the preparation of the National Centennial celebration in
1998. He was subsequently appointed as the Chairman of ExpoCorp., and was one of the nine
(9) incorporators. A controversy erupted on the alleged anomalies with the bidding contracts to
some entities and the petitioner was implicated. By virtue of an investigation conducted by the
Office of the Ombudsman, the petitioner was indicted for alleged violation of the Anti-Graft and
Corrupt Practices Act (RA 3019). The petitioner filed a Motion to Dismiss questioning the
jurisdiction of the Office of the Ombudsman, which was denied. He further filed a motion for
reconsideration which was also denied, hence this petition for certiorari.

The petitioner assails the jurisdiction of the Ombudsman and contended that he is not a public
officer since ExpoCorp is a private corporation.

Issue: W/N the petitioner is a public officer

Yes, the Ombudsman has jurisdiction over the case of the petitioner since he is a public officer.
The NCC is an office performing executive functions since one of its mandate is to implement
national policies. Moreover, the said office was established by virtue of an executive order. It is
clear that the NCC performs sovereign functions, hence it is a public office. Since petitioner is
chair of the NCC, he is therefore a public officer. The fact that the NCC was characterized by EO
128 as an 'ad-hoc body' make it less of a public office. Finally, the fact that the petitioner did
not receive any compensation during his tenure is of no consequence since such is merely an
incidence and forms no part of the office.
 SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners,
vs. HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA, Commissioner,
Civil Service Commission,

FACTS:

Petitioners in the instant case, Salvador Sanchez here serving as Director of the Office of
Personnel Inspection and Audit ("OPIA") while petitioner de Lima was serving as Director of the
Office of the Personnel Relations ("OPR"), both at the Central Office of the Civil Service
Commission. Petitioners assailed the validity of the resolution promulgated by the CSC and its
authority to issue such, the Resolution No. 934710 resolves to effect changes in the
organizations specifically Central Offices ( re arranged and merged some offices. It also
allocated some functions ( internal organizations). The objective which is to improve on the
delivery of services

ISSUE 1:

Whether or not the Civil Service Commission had legal authority to issue Resolution No. 94-
3710 to the extent it merged the OCSS [Office of Career Systems and Standards], the OPIA
[Office of Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form
the RDO [Research and Development Office];

HELD:

YES.

Examination on the statutory provisions specifically The Revised Administrative Code of 1987
(Executive Order No. 292 dated 25 July 1987) sets out, in Book V, Title I, Subtitle A, Chapter 3,
the internal structure and organization of the Commission Sec. 16. Offices in the Commission
reveals that the OCSS, OPIA and OPR, and as well each of the other Offices listed in Section 16
above, consist of aggregations of Divisions, each of which Divisions is in turn a grouping of
Sections. In short these offices constitute administrative subdivisions of the CSC. Legislative
Authority have validly delegated to CSC by Sec. 17 and also Sec 1 of 1997 Revised
Administrative Code.

The reorganization of offices is moved by legitimate considerations of administrative efficiency

and convenience.

ISSUE 2:

Whether the reorganization abolished offices?

HELD:

It did not abolished any public office nor terminate relationship whatsoever employees by the
Civil Service Commission Office or any of its officers and employees.

RATIONALE why CSC can validly reorganized:

Because only CSC knows the ever changing needs with the call of times or demand of times, as
long as this will not involve any reduction in rank or status or neither the salaries of such
employees and it is not amounting to removal nor constructive dismissal.

Lecaroz vs Sandiganbayan

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the
Sandiganbayan of thirteen (13) counts of estafa through falsification of public
documents.[1] They now seek a review of their conviction as they insist on their innocence.

Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his
son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay
(KB) of Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its
Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays.

In the 1985 election for the Kabataang Barangay Jowil Red[2] won as KB Chairman of Barangay
Matalaba, Santa Cruz. Parenthetically, Lenlie Lecaroz did not run as candidate in this electoral
exercise as he was no longer qualified for the position after having already passed the age limit
fixed by law.

Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as
member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee
Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to Red
confirming his appointment and advising him further that copies of his appointment papers
would be sent to him in due time through the KB Regional Office.[3] Red received the telegram
on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the
invitation of one of its members, Kagawad Rogato Lumawig. In that meeting, Mayor Francisco
M. Lecaroz informed Red that he could not yet sit as member of the municipal council until his
appointment had been cleared by the Governor of Marinduque. Nonetheless, the telegram was
included in the agenda as one of the subjects discussed in the meeting.

Red finally received his appointment papers sometime in January 1986.[4] But it was only on 23
April 1986, when then President Corazon C. Aquino was already in power,[5] that he forwarded
these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the
mayor to sit as sectoral representative in the Sanggunian.

Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie
Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period
16 January 1986 to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986
and then authorized someone else to sign all the other payrolls for the
succeeding quincenas and claim the corresponding salaries in his behalf.

On 25 October 1989, or three (3) years and nine (9) months from the date he received his
appointment papers from President Marcos, Red was finally able to secure from the Aquino
Administration a confirmation of his appointment as KB Sectoral Representative to the
Sanggunian Bayan of Santa Cruz.

Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against
Mayor Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let
him assume the position of KB sectoral representative. After preliminary investigation, the
Ombudsman filed with the Sandiganbayan thirteen (13) Informations for estafa through
falsification of public documents against petitioners, and one (1) Information for violation of
Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz
alone.

On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on
all counts of estafa through falsification of public documents and sentenced each of them to -

a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS,
ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a maximum of TEN (10)
YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE ABOVE CASES;
b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE CASES or a
total of SIXTY-FIVE THOUSAND PESOS (P65,000), and

c) perpetual special disqualification from public office in accordance with Art. 214 of the
Revised Penal Code.

x x x (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX HUNDRED
SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained, to the Municipality of Sta.
Cruz, Marinduque in restitution.

The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of
office sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of
the KB presidency upon the expiration of the term of accused Lenlie Lecaroz was valid.
Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of
November 1985 and, as such, was no longer the legitimate representative of the youth sector in
the municipal council of Sta. Cruz, Marinduque.

In convicting both accused on the falsification charges, the Sandiganbayan elucidated -

x x x x when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the
accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz for the payroll period
starting January 15, 1986, reinstating accused LENLIE LECAROZ to his position in the
Sangguniang Bayan, he was deliberately stating a falsity when he certified that LENLIE LECAROZ
was a member of the Sangguniang Bayan. The fact is that even accused LENLIE LECAROZ himself
no longer attended the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the
payroll for January 16 to 31, 1986, did not personally pick up his salaries anymore.

The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which
reads:

Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. - The
penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public
officer, employee, or notary public who, taking advantage of his official position, shall falsify a
document by committing any of the following acts: x x x x 4. Making untruthful statements in a
narration of facts.

xxxx
Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.

Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw
salaries from the municipality to which he was not entitled for services he had admittedly not
rendered. This constitutes Estafa x x x x the deceit being the falsification made, and the
prejudice being that caused to the municipality of Sta. Cruz, Marinduque for having paid
salaries to LENLIE LECAROZ who was not entitled thereto.

Conspiracy was alleged in the Informations herein, and the Court found the allegation
sufficiently substantiated by the evidence presented.

There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son
LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet he did so. He
could not have had any other purpose than to enable his son LENLIE to draw salaries thereby.
This conclusion is inescapable considering that the very purpose of a payroll is precisely that --
to authorize the payment of salaries. And LENLIE LECAROZ did his part by actually drawing the
salaries during the periods covered, albeit through another person whom he had authorized.

By the facts proven, there was conspiracy in the commission of Estafa between father and son.

However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019, the
Sandiganbayan acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to
sit as member of the SB because he was not properly appointed thereto nor had he shown to
the mayor sufficient basis for his alleged right to a seat in the municipal council. On this basis,
the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to
assume the position of Kagawad.

On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision
filed by the accused. This prompted herein petitioners to elevate their cause to us charging that
the Sandiganbayan erred:

First, in holding that Red had validly and effectively assumed the office of KB Federation
President by virtue of his oath taken before then Assemblywoman Carmencita Reyes on 27
September 1985, and in concluding that the tenure of accused Lenlie Lecaroz as president of
the KB and his coterminous term of office as KB representative to the SB had accordingly
expired;

Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth
representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer
occupy the office, even in a holdover capacity, despite the vacancy therein;

Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president
had expired, in holding that by reason thereof accused Lenlie Lecaroz became legally
disqualified from continuing in office as KB Sectoral Representative to the SB even in a holdover
capacity;

Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the
provisions of the pertinent Ministry of Interior and Local Governments (MILG) interpretative
circulars, accused Lenlie Lecaroz was legally entitled and even mandated to continue in office in
a holdover capacity;

Fifth, in holding that the accused had committed the crime of falsification within the
contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of
estafa of which they had been convicted required criminal intent and malice as essential
elements;

Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over,
still the trial court erred in not holding - considering the difficult legal questions involved - that
the accused acted in good faith and committed merely an error of judgment, without malice
and criminal intent; and,

Seventh, in convicting the accused for crimes committed in a manner different from that
alleged in the Information under which the accused were arraigned and tried.

The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its
conviction of the accused are: (a) although Jowil Red was duly elected KB Chairman he could
not validly assume a seat in the Sanggunian as KB sectoral representative for failure to show a
valid appointment; and, (b) Lenlie Lecaroz who was the incumbent KB representative could not
hold over after his term expired because pertinent laws do not provide for holdover.

To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth
sectoral representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51
and Sec. 1 of the KB Constitution respectively provide -

Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6) years, which shall commence on the first
Monday of March 1980.

In the case of the members of the sanggunian representing the association of barangay councils
and the president of the federation of kabataang barangay, their terms of office shall be
coterminous with their tenure is president of their respective association and federation .

xxxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the
last Sunday of November 1985 or such time that the newly elected officers shall have qualified
and assumed office in accordance with this Constitution.

The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB
since he did not present an authenticated copy of his appointment papers; neither did he take a
valid oath of office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member
of the SB although in a holdover capacity since his term had already expired. The
Sandiganbayan however rejected this postulate declaring that the holdover provision under
Sec. 1 quoted above pertains only to positions in the KB, clearly implying that since no similar
provision is found in Sec. 7 of B.P. Blg. 51, there can be no holdover with respect to positions in
the SB.

We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer
implies that the office has a fixed term and the incumbent is holding onto the succeeding
term.[6] It is usually provided by law that officers elected or appointed for a fixed term shall
remain in office not only for that term but until their successors have been elected and
qualified. Where this provision is found, the office does not become vacant upon the expiration
of the term if there is no successor elected and qualified to assume it, but the present
incumbent will carry over until his successor is elected and qualified, even though it be beyond
the term fixed by law.[7]

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to
occupy his post after the expiration of his term in case his successor fails to qualify, it does not
also say that he is proscribed from holding over. Absent an express or implied constitutional or
statutory provision to the contrary, an officer is entitled to stay in office until his successor is
appointed or chosen and has qualified.[8] The legislative intent of not allowing holdover must
be clearly expressed or at least implied in the legislative enactment,[9] otherwise it is
reasonable to assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices,[10] and courts generally indulge in the
strong presumption against a legislative intent to create, by statute, a condition which may
result in an executive or administrative office becoming, for any period of time, wholly vacant
or unoccupied by one lawfully authorized to exercise its functions.[11] This is founded on
obvious considerations of public policy, for the principle of holdover is specifically intended to
prevent public convenience from suffering because of a vacancy[12] and to avoid a hiatus in the
performance of government functions.[13]

The Sandiganbayan maintained that by taking his oath of office before Assemblywoman Reyes
in 1985 Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie
Lecaroz. It should be noted however that under the provisions of the Administrative Code then
in force, specifically Sec. 21, Art. VI thereof, members of the then Batasang Pambansa were not
authorized to administer oaths. It was only after the approval of RA No. 6733[14]on 25 July
1989 and its subsequent publication in a newspaper of general circulation that members of
both Houses of Congress were vested for the first time with the general authority to administer
oaths. Clearly, under this circumstance, the oath of office taken by Jowil Red before a member
of the Batasang Pambansa who had no authority to administer oaths, was invalid and
amounted to no oath at all.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the
full investiture with the office.[15] Only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete. Until then, he has
none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant.
It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie
Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was
in every aspect a de jure officer,[16] or at least a de facto officer[17] entitled to receive the
salaries and all the emoluments appertaining to the position. As such, he could not be
considered an intruder and liable for encroachment of public office.[18]

On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were
convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4,
of The Revised Penal Code, are intentional felonies for which liability attaches only when it is
shown that the malefactors acted with criminal intent or malice.[19] If what is proven is mere
judgmental error on the part of the person committing the act, no malice or criminal intent can
be rightfully imputed to him. Was criminal intent then demonstrated to justify petitioners'
conviction? It does not so appear in the case at bar.
Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum,
nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule,
ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious
responsibility. The exception of course is neglect in the discharge of a duty or indifference to
consequences, which is equivalent to a criminal intent, for in this instance, the element of
malicious intent is supplied by the element of negligence and imprudence[20] In the instant
case, there are clear manifestations of good faith and lack of criminal intent on the part of
petitioners.

First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he
presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-
Manotoc informing him of his supposed appointment to the SB, together with a photocopy of a
"Mass Appointment." Without authenticated copies of the appointment papers, Red had no
right to assume office as KB representative to the Sanggunian, and petitioner Mayor Lecaroz
had every right to withhold recognition, as he did, of Red as a member of the Sanggunian.

Second. It appears from the records that although Red received his appointment papers signed
by President Marcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only
on 23 April 1986 during which time President Marcos had already been deposed and President
Aquino had already taken over the helm of government. On 25 March 1986 the Freedom
Constitution came into being providing in Sec. 2 of Art. III thereof that -

Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by. proclamation or executive order or upon the
designation of their successors if such appointment is made within a period of one (1) year
from February 26, 1986 (underscoring supplied).

Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the
provincial governor forwarded the papers of Jowil Red to then Minister of Interior and Local
Government Aquilino Pimentel, Jr., requesting advice on the validity of the appointment signed
by former President Marcos. The response was the issuance of MILG Provincial Memorandum-
Circular No. 86-02[21] and Memorandum-Circular No. 86-17[22] stating that -
PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02

2. That newly elected KB Federation Presidents, without their respective authenticated

appointments from the president, cannot, in any way, represent their associations in any
sangguniang bayan/sangguniang panlalawigan, as the case may be, although they are still
considered presidents of their federations by virtue of the July 1985 elections.

MEMORANDUM CIRCULAR NO. 86-17

It is informed, however, that until replaced by the Office of the President or by this Ministry the
appointive members of the various Sangguniang Bayan, Sangguniang Panlunsod, and the
Sangguniang Panlalawigan shall continue to hold office and to receive compensation due them
under existing laws, rules and regulations.

The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars
virtually confirmed the right of incumbent KB Federation Presidents to hold and maintain their
positions until duly replaced either by the President herself or by the Interior Ministry. Explicit
therein was the caveat that newly elected KB Federation Presidents could not assume the right
to represent their respective associations in any Sanggunian unless their appointments were
authenticated by then President Aquino herself. Truly, prudence impelled Mayor Lecaroz to
take the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian.

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of
Presidents Macapagal, Marcos and Aquino concerning the doctrine of holdover. This
consistently expressed the view espoused by the executive branch for more than thirty (30)
years that the mere fixing of the term of office in a statute without an express prohibition
against holdover is not indicative of a legislative intent to prohibit it, in light of the legal
principle that just as nature abhors a vacuum so does the law abhor a vacancy in the
government.[23] Reliance by petitioners on these opinions, as well as on the pertinent
directives of the then Ministry of Interior and Local Government, provided them with an
unassailable status of good faith in holding over and acting on such basis; and,

Fourth. It is difficult to accept that a person, particularly one who is highly regarded and
respected in the community, would deliberately blemish his good name, and worse, involve his
own son in a misconduct for a measly sum of P23,675.00, such as this case before us. As aptly
deduced by Justice Del Rosario[24]
If I were to commit a crime, would I involve my son in it? And if I were a town mayor, would I
ruin my name for the measly sum of P1,894.00 a month? My natural instinct as a father to
protect my own son and the desire, basic in every man, to preserve one's honor and reputation
would suggest a resounding NO to both questions. But the prosecution ventured to prove in
these thirteen cases that precisely because they were father and son and despite the relatively
small amount involved, accused Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to
falsify several municipal payrolls for the purpose of swindling their own town of the amount of
P1,894.00 a month, and the majority has found them guilty. I find discomfort with this verdict
basically for the reason that there was no criminal intent on their part to falsify any document
or to swindle the government.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good
faith.[25] In Cabungcal v. Cordova[26] we affirmed the doctrine that an erroneous
interpretation of the meaning of the provisions of an ordinance by a city mayor does not
amount to bad faith that would entitle an aggrieved party to damages against that official. We
reiterated this principle in Mabutol v. Pascual[27] which held that public officials may not be
liable for damages in the discharge of their official functions absent any bad faith. Sanders v.
Veridiano II[28] expanded the concept by declaring that under the law on public officers, acts
done in the performance of official duty are protected by the presumption of good faith.

In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2)
circumstances which purportedly indicated criminal intent. It pointed out that the name of
accused Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which
meant that his term had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor
Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next
twelve and a half (12 -1/2) months was for no other purpose than to enable him to draw
salaries from the municipality.[29] There is however no evidence, documentary or otherwise,
that Mayor Francisco Lecaroz himself caused the name of Lenlie Lecaroz to be dropped from
the payroll for the first quincena of January 1986. On the contrary, it is significant that while
Lenlie Lecaroz' name did not appear in the payroll for the first quincena of January 1986, yet, in
the payroll for the next quincena accused Lenlie Lecaroz was paid for both the first and
second quincenas, and not merely for the second half of the month which would have been the
case if he was actually "dropped" from the payroll for the first fifteen (15) days and then
"reinstated" in the succeeding payroll period, as held by the court a quo.

From all indications, it is possible that the omission was due to the inadequate documentation
of Red's appointment to and assumption of office, or the result of a mere clerical error which
was later rectified in the succeeding payroll. This however cannot be confirmed by the evidence
at hand. But since a doubt is now created about the import of such omission, the principle of
equipoise should properly apply. This rule demands that all reasonable doubt intended to
demonstrate error and not a crime should be resolved in favor of the accused. If the inculpatory
facts and circumstances are capable of two or more explanations, one of which is consistent
with the innocence of the accused and the other with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to support a conviction.[30]

Petitioners have been convicted for falsification of public documents through an untruthful
narration of facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be
established, the following elements must concur: (a) the offender makes in a document
statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of
the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the
perversion of truth in the narration of facts was made with the wrongful intent of injuring a
third person.

The first and third elements of the offense have not been established in this case. In approving
the payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded
certifications thus -

I hereby certify on my official oath that the above payroll is correct, and that the services above
stated have been duly rendered. Payment for such services is also hereby approved from the
appropriations indicated.

When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration
of facts but a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over
as member of the Sanggunian and thus entitled to the emoluments attached to the position.
This is an opinion undoubtedly involving a legal matter, and any "misrepresentation" of this
kind cannot constitute the crime of false pretenses.[31] In People v. Yanza[32] we ruled -

Now then, considering that when defendant certified she was eligible for the position, she
practically wrote a conclusion of law which turned out to be inexact or erroneous - not entirely
groundless - we are all of the opinion that she may not be declared guilty of falsification,
specially because the law which she has allegedly violated (Art. 171, Revised Penal Code, in
connection with other provisions), punishes the making of untruthful statements in a narration
of facts - emphasis on facts x x x x Unfortunately, she made a mistake of judgment; but she
could not be held thereby to have intentionally made a false statement of fact in violation of
Art. 171 above-mentioned.
The third element requiring that the narration of facts be absolutely false is not even
adequately satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover
member of the Sanggunian was not entirely bereft of basis, anchored as it was on the
universally accepted doctrine of holdover. La mera inexactitude no es bastante para integrar
este delito.[33] If the statements are not altogether false, there being some colorable truth in
them, the crime of falsification is deemed not to have been committed.

Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in
this case. The court a quo used as indication of conspiracy the fact that the accused Mayor
certified the payrolls authorizing payment of compensation to his son Lenlie Lecaroz and that as
a consequence thereof the latter collected his salaries. These are not legally acceptable indicia,
for they are the very same acts alleged in the Informations as constituting the crime of estafa
through falsification. They cannot qualify as proof of complicity or unity of criminal intent.
Conspiracy must be established separately from the crime itself and must meet the same
degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be established
by direct evidence, for it may be inferred from the conduct of the accused before, during and
after the commission of the crime, all taken together however, the evidence must reasonably
be strong enough to show community of criminal design.[34]

Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its
finding of conspiracy, the Sandiganbayan stressed that the two accused are father and son.
Granting that this is not even ad hominem, we are unaware of any presumption in law that a
conspiracy exists simply because the conspirators are father and son or related by blood.

WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution
of 1 October 1997 of the Sandiganbayan are REVERSED and SET ASIDE, and
petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ are ACQUITTED of all the thirteen (13)
counts of estafa through falsification of public documents (Crim. Cases Nos. 13904-13916). The
bail bonds posted for their provisional liberty are cancelled and released. Costs de oficio.

SO ORDERED.
 JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.

FACTS : Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon
on January 22, 1988, and assumed office in due time. On October 27, 1988. the League of
Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador
Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a
petition for the annulment of Frivaldo

In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United
States as alleged but pleaded the special and affirmative defenses that he had sought American
citizenship only to protect himself against President Marcos

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent
Commission on Elections decided instead by its Order of January 20, 1988, to set the case for
hearing on the merits. His motion for reconsideration was denied in another Order dated
February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask
that the said orders be set aside on the ground that they had been rendered with grave abuse
of discretion. Pending resolution of the petition, we issued a temporary order against the
hearing on the merits scheduled by the COMELEC and at the same time required comments
from the respondents.

ISSUE : WON Juan G. Frivaldo was a citizen of the Philippines at the time of his election on
January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition
are merely secondary to this basic question.

HELD : The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution
that all public officials and employees owe the State and the Constitution "allegiance at all
times" and the specific requirement in Section 42 of the Local Government Code that a
candidate for local elective office must be inter alia a citizen of the Philippines and a qualified
voter of the constituency where he is running. Section 117 of the Omnibus Election Code
provides that a qualified voter must be, among other qualifications, a citizen of the Philippines,
this being an indispensable requirement for suffrage under Article V, Section 1, of the
Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a
"natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such
status. The evidence shows, however, that he was naturalized as a citizen of the United States
in 1983 per the following certification from the United States District Court, Northern District of
California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate
General in San Francisco, California, U.S.A.

The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all
public officials and employees owe the State and the Constitution "allegiance at all times" and
the specific requirement in Section 42 of the Local Government Code that a candidate for local
elective office must be inter alia a citizen of the Philippines and a qualified voter of the
constituency where he is running. Section 117 of the Omnibus Election Code provides that a
qualified voter must be, among other qualifications, a citizen of the Philippines, this being an
indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a
"natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such
status. The evidence shows, however, that he was naturalized as a citizen of the United States
in 1983 per the following certification from the United States District Court, Northern District of
California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate
General in San Francisco, California, U.S.A.

If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the
petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as
amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act
of Congress, by naturalization, or by repatriation.
It does not appear that Frivaldo has taken these categorical acts. He contends that by simply
filing his certificate of candidacy he had, without more, already effectively recovered Philippine
citizenship. But that is hardly the formal declaration the law envisions — surely, Philippine
citizenship previously disowned is not that cheaply recovered. If the Special Committee had not
yet been convened, what that meant simply was that the petitioner had to wait until this was
done, or seek naturalization by legislative or judicial proceedings.

The argument that the petition filed with the Commission on Elections should be dismissed for
tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from
continuing to discharge his office of governor because he is disqualified from doing so as a
foreigner. Qualifications for public office are continuing requirements and must be possessed
not only at the time of appointment or election or assumption of office but during the officer's
entire tenure. Once any of the required qualifications is lost, his title may be seasonably
challenged. If, say, a female legislator were to marry a foreigner during her term and by her act
or omission acquires his nationality, would she have a right to remain in office simply because
the challenge to her title may no longer be made within ten days from her proclamation? It has
been established, and not even denied, that the evidence of Frivaldo's naturalization was
discovered only eight months after his proclamation and his title was challenged shortly
thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in this country
while owing exclusive allegiance to another country. The fact that he was elected by the people
of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and
employment only to the citizens of this country. The qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as expressed through the
ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case,
that the candidate was qualified. Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he
must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to
any other state.

It is true as the petitioner points out that the status of the natural-born citizen is favored by the
Constitution and our laws, which is all the more reason why it should be treasured like a pearl
of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly
restored. This country of ours, for all its difficulties and limitations, is like a jealous and
possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal
if repentant children. The returning renegade must show, by an express and unequivocal act,
the renewal of his loyalty and love.

MENDOZA v. LAXINA, JR. 406 SCRA 156 (2003)

FACTS: Manuel Laxina took his oath and assumed office as the duly proclaimed and elected
barangay captain. Meanwhile, his rival candidate, Fermo, filed an election protest and the latter
was declared as the winner by the trial court. Laxina filed a petition with the COMELEC
questioning the order and COMELEC annulled the order on the ground that there were no good
reasons to justify it. On October 27, 1999, a writ was issued ordering Fermo to vacate said
position. He refused. However, this did not stop respondent Laxina from the discharge of his
duties as the duly elected baranggay captain. Laxina he held office in the SK-Hall and appointed
two people to become his secretary and treasurer. COMELEC issued an alias writ of execution
against Fermo but this was still unsatisfied. Laxina was able to take his oath (again) on
November 16, 1999. It was only on the following day that Fermo turned over all the assets and
properties of the barangay. On November 20, 1999, the appointments of Laxina’s secretary and
treasurer were ratified to reflect the appointment date of November 1, 1999. Fermo's
appointees objected to this but they eventually agreed only if they were paid for their services
from November 1-7, 1999. Sometime in 2000, Mendoza and other baranggay councillors filed a
complaint for violation of the anti-graft and corrupt practices against Laxina’s appointees. They
contended that defendants made it appear in the payroll that he and his appointees rendered
services starting November 8, 1999 when, in truth, they commenced to serve only on
November 17, 1999 after respondent took his oath and assumed the office of barangay
chairman. Defendants claimed that the taking anew of the oath of office as barangay chairman
was a mere formality and was not a requirement before respondent can validly discharge the
duties of his office. The Special Investigation Committee on Administrative Cases of the City
ruled that respondent had no power to make appointments prior to his oath taking on
November 16, 1999. It found respondent guilty of grave misconduct and recommended the
penalty of 2 months suspension. The Quezon City Council adopted the findings and
recommendations of the Committee. Laxina then appealed the case to the RTC. A summary
judgment was rendered by the trial court in favor of respondent. Hence, this petition.

ISSUE: Is the re-taking of an oath of office by a duly proclaimed but subsequently unseated local
elective official a condition sine qua non to the validity of his re-assumption in office? (In other
words, is the re-taking of the oath a requirement before Laxina could do his duties as barangay
captain?)

HELD: NO. In the case at bar, respondent was proclaimed as the winner in the 1997 Barangay
Elections in Batasan Hills, Quezon City; he took his oath on May 27, 1997 and thereafter
assumed office. He is therefore vested with all the rights to discharge the functions of his office.
An oath of office is a qualifying requirement for a public office; a prerequisite to the full
investiture with the office. It is only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete. However, once
proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise
the functions thereof. When the COMELEC nullified the trial court’s decision, the last actual
peaceful uncontested situation preceding the controversy was restored which referred to the
stage when Laxina was occupying the office of Barangay Captain and discharging its functions.
The retaking of his oath of office was a mere formality

Flores v. Drilon G.R. No. 104732 June 22, 1993

Eligibility and Qualifications, Law on Public Officers

FACTS:

Respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief
Executive Officer of the Subic Bay Metropolitan Authority (SBMA).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales,
and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, challenge the constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as
the “Bases Conversion and Development Act of 1992,”.

They maintain that the proviso in par. (d) of Sec. 13 infringes on the following constitutional
and statutory provisions:

(a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that “[n]o elective official shall be
eligible for appointment or designation in any capacity to any public officer or position during
his tenure,” because the City Mayor of Olongapo City is an elective official and the subject posts
are public offices;

(b) Sec. 16, Art. VII, of the Constitution, which provides that “[t]he President shall . . . . appoint
all other officers of the Government whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to appoint”, since it was Congress through
the questioned proviso and not the President who appointed the Mayor to the subject posts;
and,

(c) Sec. 261, par. (g), of the Omnibus Election Code, for the reason that the appointment of
respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April
1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections.

ISSUE:

Whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, “Provided, however, That for
the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo
shall be appointed as the chairman and chief executive officer of the Subic Authority,” violates
the constitutional proscription against appointment or designation of elective officials to other
government posts.

RULING:

Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

The section expresses the policy against the concentration of several public positions in one
person, so that a public officer or employee may serve full-time with dedication and thus be
efficient in the delivery of public services. It is an affirmation that a public office is a full-time
job. Hence, a public officer or employee, like the head of an executive department described
in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the
Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform,

“. . . . should be allowed to attend to his duties and responsibilities without the distraction of
other governmental duties or employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency . . . .”
Particularly as regards the first paragraph of Sec. 7, “(t)he basic idea really is to prevent a
situation where a local elective official will work for his appointment in an executive position in
government, and thus neglect his constituents . . . .”

In the case before us, the subject proviso directs the President to appoint an elective
official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board
and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription
seeks to prevent, it needs no stretching of the imagination to conclude that
the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the
expertise of an elective official may be most beneficial to the higher interest of the body politic
is of no moment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the
first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an
abuse of congressional authority to prescribe qualifications where only one, and no other, can
qualify. Accordingly, while the conferment of the appointing power on the President is a
perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment
on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or
during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment.

Consequently, as long as he is an incumbent, an elective official remains ineligible for

appointment to another public office.

REYNALDO V. TUANDA v. SANDIGANBAYAN, GR No. 110544, 1995-10-17

Facts:

On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were
designated as industrial labor sectoral representative and agricultural labor sectoral
representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros
Oriental... took their oath of office on 16 February 1989 and 17 February 1989, respectively.

Subsequently, petitioners filed an undated petition with the Office of the President for review
and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied
the petition
On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court
of Negros Oriental... for recognition as members of the Sangguniang Bayan. It was dismissed
on 23 July 1991.

Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of
Dumaguete City to declare null and void the designations of private respondents as sectoral
representatives,... On 21 July 1991, an information was filed before the Sandiganbayan,
docketed as Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo
Tuanda, et. al.," charging petitioners... of Violation of Section 3(e) of

R.A. No. 3019

Regional Trial Court rendered a decision declaring null and void ab initio the designations
issued by the Department of Local Government to the private respondents as sectoral
representatives for having been done in violation of Section 146

(2) of B.P. Blg. 337, otherwise known as the Local Government Code

Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the

motion for suspension of proceedings filed by petitioners.

ven assuming arguendo that the... said Regional Trial Court shall later decide that the said
appointments of the private complainants are null and void, still the private complainants are
entitled to their salaries and compensation for service they have actually rendered, for the
reason that before such judicial... declaration of nullity, the private complainants are
considered at least de facto public officers acting as such on the basis of apparently valid
appointments issued by competent authorities.

etitioners filed a motion for reconsideration of the aforementioned resolution... but it was,
likewise, denied

Hence, this special civil action for certiorari and prohibition

Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act [RA 3019, sec.
3(e)] due to their refusal, allegedly in bad faith and with manifest partiality, to pay private
respondents' salaries as sectoral representatives. This refusal, however, was... anchored on
petitioners' assertion that said designations were made in violation of the Local Government
Code (B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals
uphold the trial court's decision declaring null and void private respondents'... designations as
sectoral representatives for failure to comply with the provisions of the Local Government Code
[B.P. Blg. 337, sec. 146(2)], the charges against petitioners would no longer, so to speak, have a
leg to stand on. Petitioners cannot be accused of bad faith... and partiality there being in the
first place no obligation on their part to pay private respondents' claims. Private respondents
do not have any legal right to demand salaries, per diems and other benefits. In other words,
the Court of Appeals' resolution of the issues... raised in the civil action will ultimately
determine whether or not there is basis to proceed with the criminal case.

Private respondents insist that even if their designations are nullified, they are entitled to
compensation for actual services rendered

Issues:

The Respondent Court committed grave abuse of discretion and/or acted without or in excess
of jurisdiction in effectively allowing petitioners to be prosecuted under two alternative
theories that private respondents are de jure and/or de facto officers in violation of...
petitioners' right to due process

Ruling:

We disagree.

As found by the trial court and as borne out by the records, from the start, private...
respondents' designations as sectoral representatives have been challenged by
petitioners. They began with a petition filed with the Office of the President copies of which
were received by private respondents on 26 February 1989, barely eight (8) days after they
took... their oath of office.[17] Hence, private respondents' claim that they have actually
rendered services as sectoral representatives has not been established.

we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private
respondents' designations are finally declared invalid, they may still be considered de facto
public officers entitled to compensation for services actually... rendered.

The conditions and elements of de facto officership are the following:

There must be a de jure office;

There must be color of right or general acquiescence by the public; and

There must be actual physical possession of the office in good faith

One can qualify as a de facto officer only if all the aforestated elements are present. There can
be no de facto officer where there is no de jure office, although there may be a de facto
officer in a de jure... office.
 MALALUAN v COMELEC

FACTS

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 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 MunicipaJ 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 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. 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 musse
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.

HELD

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. “

COMELEC’s reasoning in awarding the damages in question is 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 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.
Finally, we deem the award of salaries and other emoluments to be improper and lacking legal
sanction. 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.
Petitioner was not a usurper because, while a usurper is one who undertakes to act officially
without any color of right, the petitioner exercised the duties of an elective office under color
of election thereto. 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 haa possession of
the office and had discharged the duties pertaining thereto” and is thus “legally entitled to the
emoluments of the office.”
 ROBERTO R. MONROY v. CA, GR No. L-23258, 1967-07-01

Facts:

Petitioner

Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certifi-
cate of candidacy as... representative of the first district of Rizal in the forthcoming elections...
was filed with the Commission on Elections. Three days later,... petitioner filed a letter
withdrawing said certificate of candidacy.

The Commission on Elections,... approved the withdrawal.

But on September 21, 1961, respondent... del Rosario, then the vice-mayor of Navotas, took his
oath of office as municipal mayor on the... theory that petitioner had forfeited the said office
upon his filing of the certificate of candidacy in question.

Court of First Instance of Rizal... held in the suit for injunction instituted by petitioner... that (a)
the former had ceased to be mayor... after his certificate of candidacy was filed... respondent
del Rosario became municipal mayor upon his having assumed office as such... petitioner must
reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from
September 21, 1961 up to the time he can reassume said office

This judgment was

Court of Appeals, affirmed in toto

Hence, this petition for certiorari... argues that both the lower court and the Court of Appeals...
no jurisdiction to do - review a resolution of the Commission on Elections.

Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a
lower court judgment requiring petitioner to pay respondent Del Rosario by way of actual
damages the salaries he was allegedly entitled to receive from September 21, 1961, to the...
date of petitioner's vacation of his office as mayor.

Issues:

whether or not petitioner was still the municipal mayor after September 15, 1961.

Ruling:

whether or not petitioner was still the municipal mayor after September 15, 1961.
Rev. Election Code providing that ?

"Any elective provincial, municipal, or city official running for an office, other than the one
which he is actually holding, shall be considered resigned from his office from the moment of
the filing of his certificate of candidacy,"... makes the forfeiture automatic and permanently
effective upon the filing of the certificate of candidacy for another office

Only the moment and act of filing are considered. Once the certificate is filed, the seat is... for-
feited forever and nothing save a new election or appointment can restore the ousted official.

The present case for... injunction and quo warranto involves the forfeiture of the office of
municipal mayor by the incumbent occupant thereof and the claim to that office by the vice
mayor... general rule... that the rightful incumbent of a public office may recover from an of-
ficer de facto the salary received by the latter during the time of his wrongful tenure, even
though he entered into the office in good faith and under... color of title"... that applies in the
present case.

The resulting hardship occasioned by the operation of this rule to the de facto officer who did
actual work is recognized; but it is... far more cogently acknowledge that the de facto doctrine
has been formulated, not for the protection of the de facto officer principally, but rather for the
protection of the public and individuals who get involved in the official... acts of persons
discharging the duties of an office without being lawful officers.[7] The question of
compensation involves different principles and concepts however. Here, it is possession of
title, not of the... office, that is decisive.

A de facto officer, not having good title, takes the salaries at his risk and must therefore
account to the de jure officer for whatever amount of salary he... received during the period of
his wrongful retention of the public office.

PROVINCE OF CAMARINES SUR THROUGH ITS GOVERNOR, SANGGUNIANG PANLALAWIGAN

AND PROVINCIAL TREASURER, VS.
COURT OF APPEALS AND TITO B. DATO
G.R. No. 104639, July 14, 1995

On October 12, 1972, private respondent Tito Dato was granted a temporary appointment as
Assistant Provincial Warden by then Governor Felix Alfelor, Sr which was renewed annually. On
January 1, 1974, Governor Alfelor approved the change in Dato's employment status from
temporary to permanent upon the latter's representation that he passed the civil service
examination for supervising security guards. Said change of status however, was not favorably
acted upon by the Civil Service Commission (CSC) reasoning that Tito Dato did not possess the
necessary civil service eligibility for the office he was appointed to. His appointment therefore
remained temporary.

On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor
Alfelor after criminal charges were filed against him and a prison guard for allegedly conniving
and/or consenting to evasion of sentence of some detention prisoners who escaped from
confinement. After a period, Dato was acquitted of the charges against him and requested the
Governor for reinstatement and back wages but was denied. As consequence, Dato filed an
action for mandamus before the Regional Trial Court of Pili, Camarines Sur which renders
decision in his favor.

On appeal, the CA affirmed the trial court’s decision. In due course, petitioner, Province of
Camarines Sur appealed the said decision to the Court of Appeals.

ISSUE:
Whether private respondent Tito Dato was a permanent employee of petitioner Province of
Camarines Sur thus entitled to benefits.

RULING:
No. The Court has defined the parameters within which the power of approval of
appointments shall be exercised by the Civil Service Commission. CSC has the power to
approve or disapprove an appointment set before it. It does not have the power to make the
appointment itself or to direct the appointing authority to change the employment status of an
employee. The CSC can only inquire into the eligibility of the person chosen to fill a position
and if it finds the person qualified it must so attest. If not, the appointment must be
disapproved. The duty of the CSC is to attest appointments and after that function is
discharged, its participation in the appointment process ceases.

Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is
not entitled to the relief he seeks, including his claim for back wages for the entire period of his
suspension.
 EDITHA G. PABU-AYA, Petitioner, v. THE COURT OF APPEALS, THE CIVIL SERVICE
COMMISSION, THE PROVINCIAL GOVERNMENT OF NEGROS OCCIDENTAL, PARTICULARLY THE
SANGGUNIANG PANLALAWIGAN AND/OR ROMEO J. GAMBOA, JR., VICE GOVERNOR AND
PRESIDING OFFICER, SANGGUNIANG PANLALAWIGAN OF NEGROS
OCCIDENTAL, Respondents.

DECISION

DE LEON, JR., J.:

Before us is a petition for review on certiorari, filed under Rule 45 of the revised Rules of Court
(but erroneously captioned as a petition for certiorari), by way of appeal from the Decision of
the Court of Appeals in CA-G.R. SP No. 37632, 1 promulgated on January 6, 1997, which
affirmed Resolution Nos. 94-3178 and 95-2145 dated June 14, 1994 and March 23, 1995,
respectively, of the respondent Civil Service Commission.chanrob1es virtua1 1aw 1ibrary

The undisputed facts are as follows:chanrob1es virtual 1aw library

Petitioner Editha G. Pabu-aya was an employee of the Provincial Board of Negros Occidental,
also called the Sangguniang Panlalawigan of the said province. She started as a casual laborer
on July 1, 1973. On November 14, 1986 she was appointed as Utility Worker on a permanent
status. She was later appointed as Bookbinder II, on a temporary status, on September 16,
1991. On October 16, 1992, Romeo J. Gamboa, Vice Governor of Negros Occidental, issued a
Memorandum 2 informing her that her temporary appointment as Bookbinder II had already
expired on September 16, 1992, and that consequently she could no longer continue in the
service. On October 23, 1992, she wrote the Sangguniang Panlalawigan and acknowledged
therein her failure to perform her duties satisfactorily as Bookbinder II and promised that she
would improve her performance should her appointment be renewed. 3 On January 29, 1993,
she wrote to the then President Fidel V. Ramos appealing for assistance regarding her dismissal
allegedly without due process. 4 Her letter was indorsed to the Provincial Governor of Negros
Occidental by Director Miguel V. Sison, Jr. 5 of the Presidential Action Center. Acting on this
indorsement, the then Governor Rafael Coscolluela proposed the re-appointment of petitioner
Pabu-aya as a Utility Worker under the following terms and conditions:chanrob1es virtual 1aw
library
a. That she execute an undertaking to the effect that she promises to perform the functions of a
Utility Worker and other related works which may be assigned by her immediate supervisor.

b. That her accumulated leave credits of 221.37 days must be applied for, otherwise, it shall be
forfeited. She starts anew accumulating leave credits after six months continuous service. This
is so because of a gap in the service.

c. That her re-appointment can not be retro-acted September 16, 1992 because there was an
incumbent to the position to which she is considered during said date. 6

None of the above conditions was acceptable to nor followed by the petitioner. On October 29,
1993 the petitioner withdrew her appointment papers as Utility Worker in the General Services,
effective September 16, 1992, from the Human Resource Management Services upon learning
that the same was not signed by the then Governor Coscolluela. Instead, petitioner appealed
the Memorandum dated October 16, 1992 of Vice Governor Gamboa, terminating her
employment as Bookbinder II, to the Civil Service Commission (hereinafter called the
Commission, for brevity). In Resolution No. 94-0437 7 dated January 20, 1994, respondent
Commission dismissed the said appeal of the petitioner.chanrob1es virtua1 1aw 1ibrary

Subsequently, the petitioner filed with the respondent Commission a request for reinstatement
to her original position as Utility Worker. In Resolution No. 94-3178 8 dated June 14, 1994,
respondent Commission denied the petitioner’s request for reinstatement to the position of
Utility Worker for "lack of merit." According to respondent Commission, when the petitioner
accepted the temporary appointment as Bookbinder II, without any objection, she accepted the
fact that, as a temporary employee, she has no security of tenure and may be removed from
the service without cause and due process.

Petitioner’s motion for reconsideration was denied by respondent Commission 9 in its

Resolution No. 95-2145, promulgated on March 23, 1995, the pertinent portion of which reads
as follows:jgc:chanrobles.com.ph

"From the records, it is clear that Pabu-aya accepted the position of Bookbinder II under
temporary status without any objection. When she accepted her temporary appointment she
also accepted the conditions thereof. It is stressed that she, being a temporary employee, has
no security of tenure. Her appointment may be terminated at anytime with or without cause or
it may be renewed at the pleasure of the appointing authority in the exercise of his discretion.
As Pabu-aya’s temporary appointment was not renewed after the expiration of the twelve (12)
months [sic] period, her separation from the service is valid." 10

Petitioner on May 20, 1995 then filed a "Petition for Certiorari and/or Review" before this Court
which, however, referred the same to the respondent Court of Appeals. In a Decision
promulgated on January 6, 1997, respondent Court of Appeals denied due course and
dismissed the said petition. The pertinent portion of said Decision of the Court of Appeals reads
as follows:jgc:chanrobles.com.ph

"Petitioner’s quest for reinstatement as utility worker is also unavailing as her prayer was also
denied by the Civil Service Commission per Resolution 94-3197 dated June 14, 1994, and
further upheld in the Resolution No. 95-2145 dated May 23, 1995. 11 Moreover, the Solicitor
General’s Office, in representation of the Civil Service Commission, correctly maintained that
petitioner having accepted the position of Bookbinder II, aware of the temporary nature of such
appointment, she is deemed to have lost and/or waived whatever right or privileged [sic]
insofar as her tenurial security is concerned. For, an employee is entitled only to such security
of tenure as the appointment papers actually confer.chanrob1es virtua1 1aw 1ibrary

x x x

WHEREFORE, the petition for certiorari and prohibition is hereby DENIED DUE COURSE, and is
DISMISSED, and the Resolution Nos. 94-3178, and 95-2145 dated June 14, 1994 and March 23,
1995, respectively, of the respondent Civil Service Commission are AFFIRMED." 12

The petitioner then timely filed with this Court the present petition for review on certiorari,
under Rule 45 of the revised Rules of Court, but it was erroneously captioned as "Petition
for Certiorari."cralaw virtua1aw library

The petitioner raised the following assignment of errors:chanrob1es virtual 1aw library

THE COURT OF APPEALS ERRED IN RULING THAT PETITIONER’S ACCEPTANCE OF A TEMPORARY

APPOINTMENT WAS AN INDICATION OF HER RELINQUISHMENT OF HER POSITION AS A
PERMANENT EMPLOYEE AND FORECLOSED HER RIGHT TO CONTEST HER NON-
REINSTATEMENT.
II

THE COURT OF APPEALS ERRED IN ARBITRARILY DISREGARDING THE CONSTITUTIONAL RIGHT

OF PETITIONER TO SECURITY OF TENURE.

III

THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER IS GUILTY OF LACHES.

With regard to the first issue as to whether or not the respondent Court of Appeals erred in
ruling that petitioner’s subsequent acceptance of a temporary appointment (as Bookbinder II)
was an indication of her relinquishment of her position (Utility Worker) as a permanent
employee and thus foreclosed her right to contest her non-reinstatement, the Court of Appeals
upheld and adopted the findings of facts of respondent Commission, and correctly ruled on that
issue. As a general rule, the findings of fact of the respondents Commission and Court of
Appeals are accorded great weight. In a plethora of cases, this Court has held that lower courts
are in a better position to determine the truth of the matter in litigation since the pieces of
evidence are presented before them and they are able to look into the credibility and the
demeanor of the witnesses on the witness stand. Furthermore, quasi-judicial bodies like the
Civil Service Commission are better-equipped in handling cases involving the employment
status of employees as those in the Civil Service since it is within the field of their expertise.
Factual findings of administrative agencies are generally held to be binding and final so long as
they are supported by substantial evidence in the record of the case. 13 It is not the function of
the Supreme Court to analyze or weigh all over again the evidence and credibility of witnesses
presented before the lower court, tribunal or office. The Supreme Court is not a trier of facts.
Its jurisdiction is limited to reviewing and revising errors of law imputed to the lower court, its
findings of fact being conclusive and not reviewable by this Court. 14 In the case at bar,
respondent Court of Appeals acted properly when it gave scant consideration to petitioner
Pabu-aya’s claim that had she known of the demotion in status from that of a Utility Worker, on
a permanent status, to that of Bookbinder II on a temporary status, she would have stuck to her
old permanent position of Utility Worker rather than put to naught her long years of service in
the government. It is a fact, however, that petitioner Pabu-aya freely took her oath of office as
Bookbinder II on a temporary status. That the said position carries an annual salary of
P27,000.00 which is higher in amount than that of a Utility Worker is not disputed. The new
position of Bookbinder II was in fact more beneficial to petitioner. Besides, the letter of the Vice
Governor dated October 8, 1991 denying petitioner’s application to the position of Clerk II
explained that "the position of Bookbinder II is more beneficial on your part for the reason that
you can be re-appointed on a permanent basis." 15 That letter sufficiently informed the
petitioner that her appointment as Bookbinder II was in fact temporary; otherwise, there would
be no more need to re-appoint her on a permanent basis.chanrob1es virtua1 1aw library

According to the findings of the respondent Commission, which were adopted by respondent
Court of Appeals, the claim of the petitioner that she was not furnished a copy of her new
appointment as Bookbinder II, showing the status of her appointment as temporary in nature,
cannot be relied upon. Her appointment as Bookbinder II dated September 16, 1991 16 shows
that it is "Katayuang Temporary." . . ." It is a normal office procedure to furnish a copy of the
appointment to the appointee, and to require the latter to take an oath of office. All these must
have given petitioner the opportunity to know and realize that her new appointment as
Bookbinder II was temporary and not permanent in nature. She was not forced to accept the
promotion. Since the new position of Bookbinder II would be more beneficial to her in terms of
remuneration, she in fact accepted the same on her own free will. As aptly stated in the case of
Dosch v. National Labor Relations Commission: 17

"There is no law that compels an employee to accept a promotion, as a promotion is in the

nature of a gift or reward, which a person has a right to refuse. When petitioner refused to
accept his promotion as Director of International Sales, he was exercising a right and he cannot
be punished for it as qui jure suo utitur neminem laedit. He who uses his own legal right injures
no one."cralaw virtua1aw library

With regard to the second issue as to whether or not respondent Court of Appeals erred in
arbitrarily disregarding the constitutional right of petitioner to security of tenure, it appears
that the temporary employment of petitioner as Bookbinder II was validly terminated.
Petitioner’s contention that she should be reinstated to her former position as Utility Worker is
untenable. Petitioner Pabu-aya, by having accepted the temporary appointment of Bookbinder
II, means that she had abandoned or given up her former position of Utility Worker. Her
appointment as Bookbinder II on September 16, 1991, being temporary in character, was
terminable at the pleasure of the appointing power with or without cause. The letter of
petitioner, dated October 23, 1992, 18 expressing regret over her own less than satisfactory
performance and promising to improve her work should her appointment be renewed, also
implies that there were valid reasons for the proper authorities not to renew her temporary
appointment as Bookbinder II which expired on September 16, 1992. Besides, pursuant to
Section 13 (b) Omnibus Rules Implementing Book V of the Administrative Code of 1987, a
temporary appointment shall not exceed twelve (12) months.
As regards the third issue of whether or not respondent Court of Appeals erred in holding that
petitioner was guilty of laches, the record shows that petitioner Pabu-aya did not appeal from
respondent Commission’s Resolution No. 94-0437 dated January 20, 1994 dismissing her appeal
from Vice-Governor Romeo J. Gamboa’s Memorandum dated October 16, 1992 terminating her
temporary employment as Bookbinder II. Quoted below is the pertinent portion of the Decision
of the Court of Appeals, to wit:chanrob1es virtual 1aw library

And the Commission, per Resolution No. 94-0437 dated January 20, 1994 dismissed her appeal,
by stating:chanrob1es virtua1 1aw 1ibrary

"Ms. Editha Pabu-aya, former Bookbinder, Sangguniang Panlalawigan Office, Bacolod City,
appeals from the Memorandum dated October 16, 1992 of the Vice Governor, Bacolod City,
terminating her temporary appointment.

"It appears from the records that Pabu-aya was appointed in a temporary capacity as
Bookbinder II on September 16, 1991. Pursuant to Section 13 (b) Omnibus Rules Implementing
Book V of Administrative Code of 1987, temporary appointment shall not exceed twelve (12)
months. Thus, Editha Pabu-aya, being a temporary appointee, has no security of tenure. Non-
renewal of a temporary appointment after the expiration of the twelve (12) month period is a
valid mode of termination.

"WHEREFORE, foregoing premises considered, the Commission hereby resolves to dismiss the
appeal of Ms. Editha Pabu-aya for lack of merit."cralaw virtua1aw library

And petitioner did not appeal from the Civil Service Commission’s Resolution No. 94-0437,
leaving the resolution to become final and executory. 19

In sum, we find no reversible error in the challenged Decision of respondent Court of Appeals.

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.
 G.R. No. 138780 : May 22, 2001
NORBERTO ORCULLO, JR.,, Petitioner, v. CIVIL SERVICE COMMISSION and COORDINATING COUNCIL OF
THE PHILIPPINE ASSISTANCE PROGRAM, Respondents.

DECISION

KAPUNAN, J.:

Petitioner Norberto A. Orcullo, Jr. was hired as Project Manager IV by the Coordinating Council
of the Philippine Assistance Program (CCPAP)-BOT Center effective March 11, 1996. His
employment was contractual and co-terminous with the said project which was to end on
January 30, 2000. 1 On September 23, 1996 or six (6) months from his assumption to office,
petitioner received a Memorandum, dated September 20, 1996, from one Jorge M. Briones,
Assistant Director of CCPAP, terminating petitioner's contractual employment with said agency
effective September 30, 1996. 2cräläwvirtualibräry

In a Letter dated September 20, 1996, Undersecretary Francisco F. del Rosario, Executive
Director of CCPAP, confirmed petitioner's termination as project manager of CCPAP.

Aggrieved by his dismissal, petitioner appealed the same to the Civil Service Commission (CSC).

On April 2, 1997, the respondent CSC issued Resolution No. 972309 dismissing petitioner's
appeal. The CSC found that:

x x x the appointment of Orcullo is contractual and co-terminous with the Philippine Assistance
Program Support Project and that it carries the stipulated condition "Unless terminated
sooner." The latter condition has not been qualified by any safeguard. Appellant Orcullo, when
he accepted said contractual-coterminous appointment, was aware that his services might be
terminated anytime. He is, thus, not protected by the security of tenure clause of the
Constitution. The contract is the law between the parties. And whatever is stipulated therein
governs the relationship between the parties. Said stipulations in the contract may include the
mode or manner of separations. And the cause therefore includes and is not proscribed to
derogatory record, misbehavior or incompetence or hostile attitudes. In the instant case,
appellant was separated from the service particularly for unsatisfactory performance.
(Underscoring ours)

On the issue of the proper official who should effect such termination, the next lower official of
the Center may do so. In this case, said separation was later validated by the confirmation of
the head office.3cräläwvirtualibräry

Petitioner filed a motion for reconsideration of the above resolution. On June 17, 1997, the CSC
denied said motion in its Resolution No. 973099.
On July 30, 1997, Petitioner, through counsel, filed a petition for review with the Court of
Appeals.

On August 14, 1998, the Court of Appeals rendered a decision, the dispositive portion of which
reads as follows:

WHEREFORE, for lack of merit, the petition in the above entitled case is hereby DISMISSED.
Costs against petitioner.

SO ORDERED.4cräläwvirtualibräry

Hence, this petition. Petitioner raises the sole issue of whether employees in the public service,
regardless of their status of employment, are protected by the tenurial security right embodied
in the Constitution.

Petitioner argues that, contrary to the findings of the CSC, the phrase "unless terminated
sooner" refers not to the duration of his employment, but the duration of the PAPS support
project itself. He claims that since the PAPS project was still ongoing, his services cannot be
terminated without just cause and without the observance of due process. He asseverates that
even co-terminous employees like himself enjoy security of tenure as embodied in the
Constitution.

Petitioner's arguments are bereft of merit.

It is undisputed that petitioner's employment with CCPAP is contractual and co-terminous in

nature. Such a co-terminous employment falls under the non-career service classification of
positions in the Civil Service:

Sec. 9. Non-Career Service. - The Non-Career Service shall be characterized by (1) entrance on
bases other than those of the usual tests of merit and fitness utilized for the career service; and
(2) tenure which is limited to a period specified by law, or which is coterminous with that of the
appointing authority or subject to his pleasure, or which is limited to the duration of a
particular project for which purpose employment was made. (Underscoring ours)

The Non-Career Service shall include:

xxx

(4) Contractual personnel or those whose employment in the government is in accordance with
a special contract to undertake a specific work or job, requiring special or technical skills not
available in the employing agency, to be accomplished within a specific period, which in no case
shall exceed one year, and performs or accomplishes the specific work or job, under his own
responsibility with a minimum of direction and supervision from the hiring agency.
xxx 5cräläwvirtualibräry

Additionally, Section 14 of the Omnibus Rules Implementing Book V of Executive Order No. 292
provides:

Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose
entrance and continuity in the service is based on the trust and confidence of the appointing
authority or that which is subject to his pleasure, or co-existent with his tenure, or limited by
the duration of project or subject to the availability of funds. (Underscoring ours)

The co-terminous status may thus be classified as follows:

(1) Co-terminous with the project - when the appointment is co-existent with the duration of a
particular project for which purpose employment was made or subject to the availability of
funds for the same;

(2) Co-terminous with the appointing authority - when appointment is co-existent with the
tenure of the appointing authority or at his pleasure; (Underscoring ours)

(3) Co-terminous with the incumbent - when the appointment is co-existent with the
appointee, in that after the resignation, separation or termination of the services of the
incumbent the position shall be deemed automatically abolished; and

(4) Co-terminous with a specific period - appointment is for a specific period and upon
expiration and upon thereof, the position is deemed abolished.

A perusal of petitioners employment contract will reveal that his employment with CCPAP is
qualified by the phrase unless terminated sooner. Thus, while such employment is co-
terminous with the PAPS project, petitioner nevertheless serves at the pleasure of the
appointing authority as this is clearly stipulated in his employment contract. We agree with the
appellate courts intepretation of the phrase unless terminated sooner to mean that his
contractual job as Project Manager IV from March 11, 1996 to January 30, 2000 could end
anytime before January 30, 2000 if terminated by the other contracting party-employer CCPAP.
We quote with approval said courts ruling on the matter, thus:

xxx. The employment contract is written in plain and unambiguous language. With petitioner's
stature, he could not have misunderstood it. Petitioner cannot now renege from the stipulation
invoking security of tenure under the Constitution and the Civil Service Law. The fact is he
belongs to the non-career service whose appointment is co-terminous, meaning his entrance
and continuity in the service is based on trust and confidence of the appointing
power.6 (Underscoring ours)
Granting arguendo that said disputed phrase refers not to the duration of petitioners
employment, but to the project itself, nevertheless, petitioner was validly terminated for cause.
The records will show that petitioner garnered an unsatisfactory rating during the probationary
period of his employment. 7 After due notice, he was subsequently dismissed because of his
inability to work with the other staff members of the project and to participate effectively in
meetings regarding the project, resulting in loss of trust in him by his superiors. This much can
be gleaned from the Memorandum, dated September 20, 1996, sent by Mr. Briones to the
petitioner, which reads as follows:

This is to confirm my verbal advise to you made last 4 September 1996 regarding
your unsatisfactory performance during the probationary period of your contractual
employment with the CCPAP BOT Center.

As advised, your inability to work with the other staff in the Center as well as participate in
outside meetings are the main reasons for the rating which have resulted in the loss of my
confidence in your ability to do your job as a Manager. (Underscoring supplied)

xxx 8cräläwvirtualibräry

Finally, we find petitioner's claim that he was deprived of due process unavailing. The Court of
Appeals found that petitioner was informed of his unsatisfactory performance in his job as
project manager about two weeks prior to his termination. Thereafter, upon receipt of the
memorandum terminating his services, petitioner filed a complaint-appeal to the CSC. When
the CSC affirmed his dismissal in its Resolution, dated April 2, 1997, petitioner filed a motion for
reconsideration thereof. Thus, he cannot now claim that he was not given the opportunity to be
heard.

WHEREFORE , the instant petition for certiorari is hereby DISMISSED for lack of merit.

SO ORDERED.

OSEA vs MALAYA
G.R. No. 139821, January 30, 2002

FACTS:

Petitioner Eleonor Osea filed a protest case with the Civil Service Commission alleging that she
was appointed as Officer-in-Charge, Assistant Schools Division Superintendent of Camarines
Sur, by the then Secretary of DECS, upon the endorsement of the Provincial School Board of
Camarines Sur. However, despite this, President Fidel Ramos, appointed respondent Corazon
Malaya to the position of Schools Division Superintendent of Camarines Sur.

Petitioner claims that the appointment of respondent was made without prior consultation
with the Provincial School Board, in violation of Section 99 of the Local Government Code as
well as her vested right as the Schools Division Superintendent of Camarines Sur. Petitioner
prayed that respondent’s appointment be recalled and set aside for being null and void.

The pertinent portion of Section 99 of Republic Act No. 7610, also known as the Local
Government Code of 1991, states:

Sec. 99. Functions of Local School Boards. --- The provincial, city or municipal school board shall:

xxx xxx xxx.

The Department of Education, Culture and Sports shall consult the local school boards on the
appointment of division superintendents, district supervisors, school principals, and other
school officials.

The Civil Service Commission dismissed petitioner’s protest complaint. The CSC found that
President Ramos appointed respondent without any specific division. Thus, respondent
performed the functions of Schools Division Superintendent in Iriga City. On November 3, 1997,
Sec. Gloria designated respondent as Schools Division Superintendent of Camarines Sur, and
petitioner Osea as Schools Division Superintendent of Iriga City. CSC held that Sec.99 of the LGC
of 1991 contemplates a situation where the DECS issues the appointments, whereas
respondent’s appointment was made by the President, in the exercise of his appointing power.
Moreover, the designation of respondent as Schools Division Superintendent of Camarines Sur
and of petitioner as Schools Division Superintendent of Iriga City were in the nature of
reassignments, in which case consultation with the local school board was unnecessary.
Petitioner’s MR was denied. Hence, she filed a petition for certiorari

ISSUE:

Whether respondent’s appointment require the mandatory consultation with the Local
School Board under Sec.99 of RA 7160.

HELD:

Section 99 of the LGC applies to appointments made by the DECS because at the time of the
enactment of the LGC, schools division superintendents were appointed by the DECS to specific
division or location. However, in 1994, the Career Executive Service Board issued a
Memorandum Circular placing the positions of schools division superintendent and assistant
schools division superintendent within the career executive service. Consequently, the power
to appoint persons to career executive service positions was transferred from the DECS to the
President. The appointment may not be specific as to location. The prerogative to designate the
appointees to their particular stations was vested in the Department of Education, Culture and
Sports Secretary, pursuant to the exigencies of the service, as provided in Department of
Education, Culture and Sports Order No. 75, Series of 1996.

In the case at bar, the appointment issued by President Ramos in favor of respondent to the
Schools Division Superintendent position on September 3, 1996 did not specify her station. It
was Secretary Gloria who, in a Memorandum dated November 3, 1997, assigned and
designated respondent to the Division of Camarines Sur, and petitioner to the Division of Iriga
City.

In addition, under the circumstances, the designation of respondent as Schools Division

Superintendent of Camarines Sur was not a case of appointment but rather in the nature of
reassignment from Iriga City, where she previously exercised her functions as Officer-in-Charge-
Schools Division Superintendent, to Camarines Sur. Therefore, Section 99 of the LGC, which
requires prior consultation with the local school board does not apply. It only refers to
appointments made by the Department of Education, Culture and Sports. Such is the plain
meaning of the said law.

Appointment vs. Reassignment

Appointment should be distinguished from reassignment. An appointment may be defined as

the selection, by the authority vested with the power, of an individual who is to exercise the
functions of a given office. When completed, usually with its confirmation, the appointment
results in security of tenure for the person chosen unless he is replaceable at pleasure because
of the nature of his office.

On the other hand, a reassignment is merely a movement of an employee from one

organizational unit to another in the same department or agency which does not involve a
reduction in rank, status or salary and does not require the issuance of an appointment. In the
same vein, a designation connotes merely the imposition of additional duties on an incumbent
official

Petitioner asserts a vested right to the position of Schools Division Superintendent of Camarines
Sur, citing her endorsement by the Provincial School Board. Her qualification to the office,
however, lacks one essential ingredient, i.e., her appointment thereto. While she was
recommended by Secretary Gloria to President Ramos for appointment to the position of
Schools Division Superintendent of Camarines Sur, the recommendation was not acted upon by
the President.

Petitioner Osea's designation as Officer-in-Charge, Assistant Schools Division Superintendent,

was expressly made subject to further advice from the DECS. Thus, her designation was
temporary. In fact, there was a need to recommend her to the President for appointment in a
permanent capacity. Inasmuch as she occupied her position only temporarily, petitioner can be
transferred or reassigned to other positions without violating her right to security of tenure.
Indeed, petitioner has no vested right to the position of Schools Division Superintendent of
Camarines Sur.
 Sta. Maria v. Lopez, G.R. No. L-30773, [February 18, 1970]

FACTS:

As far back as February 11, 1969, the graduate and undergraduate students of the UP College of
Education presented to President Salvador P. Lopez a number of demands having a bearing on
the general academic program and the physical plant and services, with a cluster of special
demands. In response, President Lopez created a committee composed of eight graduate
students, two undergraduate students, and four faculty members. This committee met times
with Dean Sta. Maria in February and March 1969. On March 17, 1969, Dean Sta. Maria gave
President Lopez a written summary of the dialogues he had with the committee and
enumerated in connection with the demands, the steps taken, the steps being taken, and the
steps to be taken in consultation with the faculty. He also recommended to the UP President
the following: a more adequate budget responsive to the needs of the college, taking into
account its expanding graduate program; improvement of the library service in terms of a
better book collection and more adequate space and reading rooms, particularly for graduate
students; appointment of more faculty members on the senior level to handle the large
graduate program, and to meet the acute need for more graduate advisers, critics, and
committee members; improvement of the, water system of the college; improvement of the
physical plant of the college, including its classrooms, offices, toilets, sidewalks and surrounding
landscape; and construction of a graduate students’ dormitory.

But the students were not to be appeased. For, Dean Sta. Maria, according to them, did not act
on some of their demands. Respondents herein have stressed that in the meetings of the
education graduate committee, Dean Sta. Maria neither included in the agenda nor consulted
the faculty about the students’ demands on “foreign language proficiency examination” and on
“research and thesis writing procedures”. They have brought out the fact that many members
of the faculty shared the students’ grievances on the absence of definite standards and
procedures on academic work, including teaching load, administrative and committee
assignments, faculty evaluation, and favoritism and discrimination.

On July 16, 1969, Adelaida E. Masuhud, President of the UP Graduate Education Student
Organization, led a group who visited President Lopez and submitted to him a progress report
on the students’ demands taken up with Sta. Maria since March 26, 1969. She acknowledged
that the dean had granted ten demands but deplored the fact that the dean had ignored the
following; submission to the faculty for decision, of the demand for abolition of foreign
language requirements and comprehensive examinations; fixing the criteria for selection,
admission, appointment and promotion of faculty members; formulation of clear-cut policies
on thesis advising, faculty teaching load, and faculty membership on standing committees; and
appointment of a permanent director for the Graduate Education Studies of the SPED Program.
She thus stated: “I appreciate the efforts of the Dean in acting on some of our demands.
However, the Dean has failed to take further action on the demands that have far reaching
implications for the students, faculty and the College as a whole. As a consequence problems,
confusion and demoralization of students and faculty have cropped up anew in the college.”

The students threatened to boycott their classes the next day, July 17. President Lopez asked
that they desist, suggested that they instead attend a student-faculty meeting the next day in
his office.

But on July 17, the Education Graduate Student Organization boycotted their classes just the
same. The President met the striking students’ representatives and the faculty members of the
College of Education. Charges of favoritism were allegedly hurled by some of the faculty
members against Sta. Maria. On the other hand, the dean offered to sit down with the
students. The latter, however, refused to enter into a dialogue unless he (the dean) were first
ousted.

In a separate development, the faculty members of the College of Education convened in the
afternoon of July 22. They resolved, amongst others, to recognize the right of is a college dean
to his position from which he cannot be removed unless for cause (44 in favor, 2 abstained),
and U not to endorse the students’ demand for the forced resignation of Sta. Maria (36 in favor,
5 against, 3 abstained).

The boycott fever infected other colleges. On July 22, 1969, the newly installed members of the
UP Student Council voted to support the education students’ strike. The next day, July 23, the
main avenues leading to the university gates were barricaded, buses denied entrance, and
students cajoled into joining the strike. It was thus on that day that all academic activity in the
university came to a complete standstill. In the morning of July 28, at 10:00 o’clock, the UP
President called a meeting of the faculty of the College of Education. Those present gave him a
vote of confidence (40 in favor, 7 abstained) to resolve the issue on hand as he sees fit.
Armed with the vote of confidence of the education faculty, on the same day, July 23, 1969,
President Lopez issued the transfer order herein challenged, Administrative Order 77. That
order, addressed to Dean Sta. Maria, reads:

“By special authority vested in me by the Board of Regents and pursuant to the Civil Service Law
and the University Code, you are hereby transferred from the College of Education to the Office
of the President as Special Assistant 8 with the rank of Dean, without reduction in salary, in the
interest of the service.
This transfer involves your administrative position only and in no way affects your status as
professor of the University. This order shall take effect immediately.”
Simultaneously, President Lopez appointed ad interim Professor Nemesio R. Ceralde as “acting
Dean of the College of Education, without additional compensation, effective July 23, 1969”.

President Lopez was to explain in a press statement of July 23, 1969 that he “cannot permit the
continued disruption of the academic life of the institution”; that the transfer order was made
“[i]n the interest of the service” and “as an emergency measure” because the meetings with
the faculty, students, Sta. Maria and the UP President had “proved fruitless in the face of the
refusal of the College of Education students to discuss any further their demands unless and
until Dean Sta. Maria resigns his position”; and that, therefore, “the complete shut-down of
classes in the Diliman campus has compelled” him to “transfer Dean Sta. Maria to other duties”.

Having received the transfer order on the same day, July 23, Sta. Maria forthwith wrote a letter,
which he himself handcarried to President Lopez, requesting that ” (a) a formal investigation be
conducted by the Board of Regents on the circumstances which led to the promulgation of the
above order, and on the basis thereof; and (b) said order be reconsidered and set aside for
being manifestly unjust, unfair, unconstitutional, and contrary to law, and, therefore, null and
void.”

ISSUE:
A.) WON Dean Sta. Maria can be transferred without its consent.
B.) WON Dean Sta. Maria was actually demoted and not merely transferred.
C.) WON the lack of formal hearing violated her rights to due process.

HELD:
A.) NO. There are transfers which do not amount to removal. Some such transfers can be
effected without the need for charges being preferred, without trial or hearing, and even
without the consent of the employee. The clue to such transfers may be found in the “nature of
the appointment.” Where the appointment does not indicate a specific station, an employee
may be transferred or reassigned provided the transfer affects no substantial change in title,
rank and salary.

The rule that outlaws unconsented transfers as anathema to security of tenure applies only to
an officer who is appointed — not merely assigned — to a particular station. Such a rule does
not prescribe a transfer carried out under a specific statute that empowers the head of an
agency to periodically reassign the employees and officers in order to improve the service of
the agency. In the case at bar, however, the appointment of the petitioner is that of “Dean,
College of Education, University of the Philippines”. He is not merely a dean “in the university”.
His appointment is to a specific position; and, more importantly, to a specific station.

B.) YES. The transfer of petitioner from his post of Dean, college of Education, UP, to the Office
of respondent UP President as Special Assistant in charge of public information and relations
was a demotion. A demotion, because: First, Deanship in a university, being an academic
position which requires learning, ability and scholarship, is more exalted than that of a special
assistant who merely assists the President, as the title indicates. The special assistant does not
make authoritative decisions. Second. The position of dean is a line position where the holder
makes authoritative decisions in his own name and responsibility. A special assistant does not
rise above the level of staff position. Third. The position of dean is created by law, the university
charter, and cannot be abolished even by the Board of Regents. That of special assistant, upon
the other hand, is not so provided by law; it was a creation of the university president.

C.) YES. Transfer could be but a ploy to cover dismissal, and dismissal cannot be justified on
grounds of expediency. Due process is associated with the sporting idea of fair play; it shuns
oppression and eschews unfair dealing; it obeys the dictates of justice and is ruled by reason.
The Scriptures no less remind us to hear before we condemn. Fidelity to this cardinal principle
must have impelled Congress to clarify the authority to transfer subordinate officers and
employees, an authority so often misused and abused to ride roughshod over hapless civil
servants. As amended, the Civil Service Law provides that “if the employee believes that there
is no justification for the transfer, he may appeal his case . . . and pending his appeal and
decision thereon, his transfer shall be held in abeyance.”

Demonstrations and boycotts which are manifestations of such activism are constitutionally
protected. But there are limits. A fundamental precondition to the exercise of such rights, we
perceive, is that the activity should not impair the rights of others whose roots are as deep and
as equally protected by iron-clad guarantees. A high regard to a man’s dignity is the hallmark of
our law. Emergency could not justify disregard of constitutional rights. A fundamental charter is
for all times and for all conditions.
 Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court (G.R. No. L-65439)
Appointment – Security of Tenure in Ad Interim Appointments

FACTS:

Dr. Esteban has the background of a competent person able to handle a high post. He used to
teach in the Philippine College of Commerce when he was invited by Dr. Blanco to teach in
PLM. Blanco was then the president of PLM. He later assigned Esteban as the VP for Academic
Affairs. His appointment is however merely ad interim. Thereafter, he received notifications of
renewal of his term every time his term would lapse. Until in 1975 when he asked Blanco to
appoint him as the permanent VP. Blanco however refused to appoint him and he assigned
Esteban to a lower post instead. Blanco also said that the Board of Regents was not able to
approve his appointment as VP for it was withdrawn. Esteban file with the CSC and the CSC
ruled in favor of him. PLM appealed to the trial court and the court affirmed the CSC. PLM again
appealed to the IAC and the IAC ruled in favor of Esteban again.

ISSUE: Whether or not Esteban’s appointment became permanent.

HELD: Esteban had been extended several “ad-interim” appointments which PLM mistakenly
understands as appointments temporary in nature. An officer ad interim is one appointed to fill
a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of
its regular incumbent.

But such is not the meaning nor the use intended in the context of Philippine law. In referring
to Esteban’s appointments, the term is not descriptive of the nature of the appointments given
to him. Rather, it is used to denote the manner in which said appointments were made, that is,
done by the President of the PLM in the meantime, while the Board of Regents, which is
originally vested by the University Charter with the power of appointment, is unable to act.

Later, in its Resolution 485, the PLM Board of Regents verified Esteban’s appointment without
condition nor limitation as to tenure. As of that moment, it became a regular and permanent
appointment. Note further that “. . . an ad interim appointment is one made in pursuance of
par (4), sec 10, Article 7, of the [1973] Constitution, which provides that ‘the President shall
have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.’ It is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission on Appointments does not
alter its permanent character. An ad interim appointment is disapproved certainly for a reason
other than that its provisional period has expired. Said appointment is of course distinguishable
from an ‘acting’ appointment which is merely temporary, good until another permanent
appointment is issued.”
 CIVIL SERVICE COMMISSION, petitioner,
vs.
SATURNINO DE LA CRUZ, respondent.

DECISION

CORONA, J.:

Before us is a petition for certiorari under Rule 45 of the Revised Rules of Court, seeking to
review and set aside the May 14, 2003 decision1 and June 17, 2003 resolution2 of the Court of
Appeals in CA-G.R. SP No. 54088, entitled Saturnino de la Cruz vs. Civil Service Commission. In
that decision, the appellate court set aside CSC Resolution Nos. 98-2970 and 99-1451,
consequently approving Saturnino de la Cruz’ appointment as Chief of the Aviation Safety
Regulation Office.

The pertinent facts,3 as narrated by the Office of the Solicitor General, follow.

Respondent Saturnino de la Cruz is an employee of the Air Transportation Office, DOTC,

presently holding the position of Chief Aviation Safety Regulation Officer of the Aviation
Safety Division.

Respondent was promotionally appointed to the said position on November 28, 1994,
duly attested by the Civil Service Commission (CSC). But prior thereto, he was a Check
Pilot II in the Air Transportation Office (ATO).

In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security

Division of the ATO formally filed with the Department of Transportation and
Communication (DOTC) her protest against the promotional appointment of respondent
as Chief Aviation Safety Regulation Officer, claiming among others that respondent did
not meet the four-year supervisory requirement for said position.

On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a decision finding the
protest without merit.

Apparently dissatisfied, Calamba appealed the decision of the DOTC Secretary to the
CSC-NCR.

Under date of October 17, 1995, Director Nelson Acebedo of CSC-NCR requested ATO
Executive Director Manuel Gilo to comment on the appeal and to submit to the CSC-NCR
the documents pertinent thereto.

Since the CSC-NCR received no action on said request for comment, the CSC-NCR again
wrote Director Gilo regarding the matter on May 5, 1997. But to no avail.
On October 14, 1997, for the last time, the CSC-NCR reiterated to Director Gilo its
request for comment.

On November 18, 1997, the CSC-NCR rendered its decision upholding the protest of
Calamba and recalling the approval of respondent’s appointment as Chief Aviation
Safety Regulation Officer. Said the CSC-NCR:

"After an initial evaluation of the protest, we find that the only issue to be
resolved is whether or not the protestee meets the minimum experience
requirements as of the date of the protestee’s appointment to the contested
position. The contested position requires four years of work experience in
position/s involving management per Qualification Standards Manual prescribed
by MC No. 46, s. 1993 and/or four years of experience in planning, organizing,
directing, coordinating and supervising the enforcement of air safety laws, rules
and regulations pertaining to licensing, rating and checking of all airmen and
mechanics and regulation of the activities of flying schools per ATO Qualification
Standards xxx.

xxx xxx xxx

Taking into account his previous positions, Mr. dela Cruz could not have
exercised managerial or supervisory functions for the required number of years.
x x x. Moreover, vis-à-vis the experience requirements of the approved ATO
Qualification Standards, Mr. dela Cruz’ work experience prior to his appointment
to the contested position did not concur therewith.

We are of the view therefore, that experience-wise, Mr. dela Cruz did not meet
the requirements of the contested position as of the date of his appointment
thereto.

xxx xxx xxx."

Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for the
suspension of the order recalling respondent’s appointment, citing several reasons in
support thereof.

Subsequently, a Manifestation with Motion to Admit Addendum dated December 22,

1997 was filed by Director Gilo with the CSC-NCR. Director Gilo argued that Calamba had
no legal personality to file a protest because she is not a qualified next-in-rank and that
the protest was filed out of time. He likewise asserted that respondent had fully met the
qualifications required of the position.
On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason to
disturb earlier rulings on the matter. He also denied ATO Director Gilo’s request, for lack
of merit.

Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted
Director Gilo’s request and affirmed the approval of respondent’s appointment as Chief
Aviation Safety Regulation Officer. He said:

"xxx xxx xxx.

We reviewed again the documents including the Office Orders designating

protestant dela Cruz to supervisory position which were obviously issued during
the latter part of 1993. A liberal consideration thereof would come up with a
little over one year of supervisory and managerial experience. Certainly, he was
short of the required number of years of work experience for the contested
position as of the date of the issue of his appointment. Nevertheless, considering
that Mr. dela Cruz has already in his favor at least four years of continuous
supervisory/managerial experience from his designation as Acting Chief of the
Aviation Safety Regulation Division, supervened by his permanent appointment
thereto as Chief thereof in November 28, 1994, up to present, he has
substantially satisfied the four years experience required for appointment to the
contested position.

xxx xxx xxx."

In a letter dated January 26, 1998, Calamba requested the CSC to implement the
January 5, 1998 ruling of the CSC-NCR.

When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo
explained that the January 5, 1998 ruling is unofficial and inexistent.

The CSC treated Calamba’s request as an appeal. On November 13, 1998, the CSC
rendered its Resolution No. 98-2970, the decretal portion of which reads:

"WHEREFORE, the appeal of Annabella A. Calamba is hereby granted. The

appointment of Saturnino De la Cruz as Chief Aviation Regulation Officer is
disapproved. De la Cruz is hereby reverted to his former position.

xxx xxx xxx."

Acting on the request for reconsideration filed by respondent, the CSC rendered its
Resolution No. 99-1451 on July 6, 1999, the dispositive portion of which reads:
 "WHEREFORE, the instant motion for reconsideration of Saturnino dela Cruz is
hereby denied. Accordingly, CSC Resolution No. 98-2970 dated November 13,
1998 stands."

On August 11, 1999, respondent filed a petition for review with the Court of Appeals, docketed
as CA-G.R. SP No. 54088, seeking to nullify CSC Resolution Nos. 98-2970 and 99-1451.

In a decision4 dated March 14, 2003, the Court of Appeals granted the petition by setting aside
CSC Resolution Nos. 98-2970 and 99-1451 and approving respondent’s appointment as Chief of
the Aviation Safety Regulation Office.

Petitioner’s motion for reconsideration was subsequently denied in a resolution issued on June
17, 2003.

Hence, the instant petition for review.

Petitioner contends that the appellate court erred in approving respondent’s appointment as
Chief Aviation Safety Regulation Officer despite his failure to meet the minimum four-year
managerial and supervisory qualification for the position. It further contends that respondent’s
completion of the required experience during the pendency of the present case cannot be
counted in his favor because compliance with the prescribed mandatory requirements should
be as of the date of issuance of the appointment and not the date of approval by the CSC or the
resolution of the protest against the appointment.

The petition lacks merit.

Contrary to petitioner’s contention, respondent has sufficiently complied with the required
experience standards.

First, upon the issuance of respondent’s appointment on November 28, 1994, the qualification
standards of the DOTC for the position of Chief Aviation Safety Regulation Officer were as
follows:

EDUCATION: Bachelor’s Degree related to Aviation

EXPERIENCE: 4 years of experience in planning, organizing, directing, coordinating, and
supervising the enforcement of air safety laws, rules, and regulations
pertaining to licensing, rating and checking of all airmen and mechanics
and the regulation of the activities of flying schools.

License required: Airline Transport Rating / Flight Operations Officer /

Aircraft Maintenance Engineer (A&P) License / Flight Engineer License
TRAINING: In-service training in management; specialized course in aircraft
maintenance / air carrier operations/ flight dispatching/ aircraft accident
investigation/ equipment qualification course / flight training (local &
 abroad)
ELIGIBILITY: Relevant RA 1080 Career Service Prof. 1st Grade

Relevant Eligibility for Second Level Position5

As noted by the CSC-NCR,6 the contested position required four years of work experience in
managerial position(s) per the Qualification Standards Manual prescribed by MC No. 46, s.
1993 and/or four years of experience in planning, organizing, directing, coordinating and
supervising the enforcement of air safety laws, rules and regulations pertaining to licensing,
rating and checking of all airmen and mechanics and regulation of the activities of flying schools
per the above-stated ATO-DOTC Qualification Standards.

Petitioner’s insistence that respondent failed to meet the four-year managerial and supervisory
experience requirement is misplaced. It is a well-settled rule in statutory construction that the
use of the term "and/or" means that the word "and" and the word "or" are to be used
interchangeably.7 The word "or" is a disjunctive term signifying dissociation and independence
of one thing from another.8 Thus, the use of the disjunctive term "or" in this controversy
connotes that either the standard in the first clause or that in the second clause may be applied
in determining whether a prospective applicant for the position under question may qualify.

Respondent would indeed lack the required years of work experience to qualify for the
contested position if the managerial standards in the first clause above were to be strictly
followed. At the time of his permanent appointment on November 28, 1994 as Chief Aviation
Safety Regulation Officer, respondent had a little over one year of managerial experience from
his designation as Acting Chief of the Aviation Safety Division during the latter part of 1993.
However, the work already rendered by respondent in the ATO at the time of his appointment
was well within the supervisory standard in the second clause. Planning, organizing, directing,
coordinating and supervising the enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the
activities of flying schools were part of the work performed by respondent for more than 13
years prior to his appointment.

Before respondent was appointed to the contested position, he had held several other
positions in the ATO, namely:

March 6, 1981 to July 15, 1981 Supply Checker

July 16, 1981 to February 5, 1983 Junior Aeronautical Engineer
February 6, 1983 to February 29, Air Carrier Safety Inspector
1984
March 1, 1984 to February 28, 1987 Check Pilot I
March 1, 1987 to November 27, 1994 Check Pilot II
November 28, 1994 to date Chief Aviation Safety Regulation Officer9
These positions, spanning more than 13 years, in four of the five sections of the Aviation Safety
Division of the ATO definitely met the minimum supervisory experience required of respondent
for the position.

In Rapisora vs. Civil Service Commission,10 this Court held that the rule that appointees must
possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail
an agency’s discretionary power to appoint, as long as the appointee possesses other
qualifications required by law. The appellate court was therefore correct in setting aside the
assailed CSC resolutions and considering the respondent’s total work experience as sufficient to
meet the supervisory standards under the second clause, thereby finding respondent qualified
for appointment to the contested position.

Second, respondent’s promotional appointment was issued in accordance with petitioner’s

selection process. Respondent passed the rigid screening of the ATO Personnel
Selection/Promotion Board as well as the oral and written examinations of the DOTC Selection
Board.

DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:

1. Capt. dela Cruz has been with the Air Transportation Office for more than 13 years
already and during such period, he faithfully and efficiently (served in) four of the five
sections of the Aviation Safety Division of which the position under consideration is the
head, thereby gaining more varied experience and working knowledge of the most
important and sensitive functions of the Division over other applicants;

2. The recommendee always performs his assigned tasks promptly with dedication,
integrity, high sense of responsibility and professionalism which he had demonstrated
when he established and developed the Airport Crash Rescue Organization (ACRO)
procedure to various national airports of the country, and when he organized the Air
Transportation Office (ATO) Operations Center which is now on a 24-hour operation and
serving as the nerve center of this Office;

3. He is a dedicated public servant and is always willing to respond to call of duty even
beyond office hours like when he is flying the ATO’s aircraft for navigation aide check
during holidays and weekends, aside from conducting checkride to airmen prior to
issuance of the pilot license;

4. Capt. dela Cruz is an outstanding team worker as well as a leader and promotes
enthusiasm among co-workers. He handles all areas of job with minimal supervision and
accomplishes objectives efficiently. He accepts stress situations and performs extremely
well.11
Because of respondent’s excellent credentials, DOTC Assistant Secretary for Administrative and
Legal Affairs Wilfredo M. Trinidad, chair of the Personnel Selection Board, strongly
recommended his promotional appointment to the contested position.

Third, respondent’s multifarious experiences and trainings12 in air transportation were taken
into account when he was chosen for the subject position. Respondent not only showed a
continuing interest to improve his expertise in the field of air transportation, he also acquired
an Airline Transport Pilot’s License in 1998.13 As a privileged holder of such license, respondent
exercised administrative supervision and control over pilots, cabin and crew members to
ensure compliance with air safety laws, rules and regulations.

In addition, respondent’s dedication to the service was demonstrated by his conceptualization

and establishment of the Airport Crash Rescue Organization (ACRO) procedure in various
national airports in the country to ensure the security of both airport personnel and
passengers. Respondent also organized the Air Transportation Office Operations Center which
now provides air service assistance on a 24-hour basis.

Because of respondent’s commendable performance, he was designated Chief of the Air

Transportation Office Operations Center in 1993 per Office Order No. 178-93,14 in addition to
his duties as Check Pilot II. He was also designated Acting Chief, Aviation Safety Division, of the
ATO per Office Order No. 211-93.15

In Teologo vs. Civil Service Commission,16 the Supreme Court ruled:

"Promotions in the Civil Service should always be made on the basis of qualifications,
including occupational competence, moral character, devotion to duty, and, not least
important, loyalty to the service. The last trait should always be given appropriate
weight, to reward the civil servant who has chosen to make his employment in the
Government a lifetime career in which he can expect advancement through the years
for work well done. Political patronage should not be necessary. His record alone should
be sufficient assurance that when a higher position becomes vacant, he shall be
seriously considered for the promotion and, if warranted, preferred to less devoted
aspirants."

As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director Nelson
Acebedo, "a proven excellent performance of a person is better than just experience by
occupying a position but lacks dedication to duty, strong leadership and technical know-how."17

It is elementary in the law of public officers that the power to appoint is in essence
discretionary on the part of the proper authority. In Salles vs. Francisco, et al.,18 we had
occasion to rule that, in the appointment or promotion of employees, the appointing authority
considers not only their civil service eligibilities but also their performance, education, work
experience, trainings and seminars attended, agency examinations and seniority. Consequently,
the appointing authority has the right of choice which he may exercise freely according to his
best judgment, deciding for himself who is best qualified among those who have the necessary
qualifications and eligibilities. The final choice of the appointing authority should be respected
and left undisturbed. Judges should not substitute their judgment for that of the appointing
authority.

In the appointment of division chiefs, as in this case, the power to appoint rests on the head of
the department. Sufficient if not plenary discretion should be granted to those entrusted with
the responsibility of administering the offices concerned. They are in a position to determine
who can best fulfill the functions of the office vacated.19 Not only is the appointing authority the
officer primarily responsible for the administration of the office, he is also in the best position
to determine who among the prospective appointees can efficiently discharge the functions of
the position.20

Respondent was the uncontested choice of the appointing authority. Then DOTC Secretary
Jesus B. Garcia dismissed the protest against respondent’s appointment. ATO Executive
Director Gilo also noted respondent’s full compliance with the qualifications for the position.
CSC-NCR Director Acebedo, who previously recalled respondent’s appointment, later affirmed it
after a re-evaluation of the case and declared his previous ruling unofficial and inexistent.

Clearly then, there is no reason to disapprove the appointment of respondent as Chief of the
Aviation Safety Regulation Office considering that he is fully qualified and evidently the choice
of the appointing authority. Between the Commission and the appointing authority, we sustain
the latter.21 "Every particular job in an office calls for both formal and informal qualifications.
Formal qualifications such as age, number of academic units in a certain course, seminars
attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects for the future and best interest of the service.
Given the demands of a certain job, who can do it best should be left to the head of the office
concerned provided the legal requirements for the office are satisfied."22

We, however, agree with petitioner that the reckoning point in determining the qualifications
of an appointee is the date of issuance of the appointment and not the date of its approval by
the CSC or the date of resolution of the protest against it. We need not rule on petitioner’s
assertion that respondent’s subsequent compliance with the experience standards during the
pendency of the case should not be counted in his favor since respondent was anyway qualified
for the position at the time of his appointment.

But even assuming for the sake of argument that respondent failed to meet the experience
requirement to qualify for the contested position, we are still inclined to uphold the appellate
court’s approval of respondent’s appointment. Petitioner itself has, on several occasions,
allowed the appointment of personnel who were initially lacking in experience but
subsequently obtained the same.

In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled thus:
 "A careful evaluation of the qualifications of Josue reveals that he meets the education,
training and eligibility requirements of the position. Considering that Josue has already
in his favor three (3) years and eight (8) months experience as Senior Inspector up to the
present, he has substantially satisfied the four (4) years experience required for the
appointment as Chief Inspector."

Following petitioner’s line of reasoning, respondent is deemed to have satisfactorily complied

with the experience requirement for the contested position when he was designated Chief of
the ATO Operations Center and Acting Chief of the ATO Aviation Safety Division. Having held
said positions from 1993 to the present, respondent may be considered to have acquired the
necessary experience for the position.

WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals
setting aside CSC Resolution No. 98-2970 and CSC Resolution No. 99-1451 is AFFIRMED. The
appointment of Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JESUS GARCIA y MANABAT, accused-appellant.

PUNO, J.:

For review is the conviction of accused-appellant JESUS GARCIA y MANABAT for illegal
possession of five (5) kilos of marijuana for which he was initially sentenced to death. The
Information1 against him reads:

That on or about the 28th day of November, 1994, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his possession, custody and control
five (5) kilos of compressed marijuana dried leaves, without the authority of law to do
so, in violation of the abovecited provision of the law.

CONTRARY TO LAW.

Upon arraignment, accused-appellant pled not guilty.

The prosecutions case hinges on the testimony of Senior Inspector OLIVER ENMODIAS. He
recounted that on November 28, 1994, he and SPO3 JOSE PANGANIBAN boarded a passenger
jeepney from their office in Camp Dangwa, La Trinidad, Benguet, en route to Baguio City. He
took the seat behind the jeepney driver while SPO3 Panganiban sat opposite him. They were in
civilian attire. When the jeepney reached Km. 4 or 5, accused JESUS GARCIA boarded the
jeepney carrying a plastic bag. He occupied the front seat, beside the driver and placed the
plastic bag on his lap. After a couple of minutes, the policemen smelled marijuana which
seemed to emanate from accused's bag. To confirm their suspicion, they decided to follow
accused when he gets off the jeepney.2

The accused alighted at the Baguio city hall and the police officers trailed him. The accused
proceeded to Rizal Park and sat by the monument. Half a meter away, the police officers saw
the accused retrieve a green travelling bag from the back pocket of his pants. He then
transferred five (5) packages wrapped in newspaper from the plastic bag to the green bag. As
the newspaper wrapper of one of the packages was partially torn, the police officers saw the
content of the package. It appeared to be marijuana.3 Forthwith, the policemen approached the
accused and identified themselves. The accused appeared to be nervous and did not
immediately respond. The policemen then asked the accused if they could inspect his travelling
bag. The accused surrendered his bag and the inspection revealed that it contained five (5)
bricks of what appeared to be dried marijuana leaves. The police officers then arrested the
accused and seized his bag. The accused was turned over to the CIS office at the Baguio Water
District Compound for further investigation. He was appraised of his custodial rights. At about 5
p.m., the arresting officers left for the crime laboratory at Camp Dangwa, Benguet, for chemical
analysis of the items seized from the accused. The next day, the policemen executed their joint
affidavit of arrest and transferred the accused to the Baguio city jail. Verification by the
arresting officers of the records at the Narcotics Command revealed that the accused's name
was in the list of drug dealers.4 The result of the chemical analysis of the five (5) items seized
from the accused confirmed that they were dried marijuana fruiting tops, weighing a total of
five (5) kilos.5

For his part, the accused admitted being at the locus criminis but denied possessing marijuana
or carrying any bag on November 28, 1994. He alleged that on said day, at about 8:00 a.m., he
left his residence in Angeles City to visit his brother, NICK GARCIA, whom he had not seen for
ten (10) years. He arrived in Baguio City at 12:30 p.m. Before proceeding to his brother's house,
he took a stroll at the Rizal Park. At about 2:00 p.m., two (2) men accosted him at the park.
They did not identify themselves as police officers. They held his hands and ordered him to go
with them. Despite his protestations, he was forcibly taken to a waiting car 6 and brought to a
safehouse. There, he was asked about the source of his supply of illicit drugs. When he denied
knowledge of the crime imputed to him, he was brought to a dark room where his hands were
tied, his feet bound to a chair, his mouth covered by tape and his eyes blindfolded. They started
mauling him. Initially, he claimed he was kicked and punched on the chest and thighs. When
asked further whether he suffered bruises and broken ribs, he answered in the negative.
Thereafter, he explained that there were no visible signs of physical abuse on his body as he
was only punched, not kicked. Notwithstanding the maltreatment he suffered, the accused
claimed he stood firm on his denial that he was dealing with illicit drugs.7

To corroborate accused's testimony, the defense presented MANUEL DE GUZMAN, a resident

of Baguio City and a neighbor of accused's brother Nick Garcia. He came to know the accused in
1994 when accused visited his brother Nick, a few months before accused was arrested in
November that same year. He recounted that in the afternoon of November 28, 1994, while he
was walking along Rizal Park, he noticed two (2) men holding the accused's hands and forcing
him to a car. He was then about 8-10 meters away. He did not see the accused or any of the
two men carrying a bag.8

In a Decision, dated January 29, 1996, RTC Judge Pastor de Guzman, Jr.9 found the accused
guilty of illegal possession of prohibited drugs and sentenced him to suffer the maximum
penalty of death. The dispositive portion reads:

WHEREFORE, premises considered, the Court finds the accused Jesus Garcia y Manabat
guilty of the violation of Section 8, Art. II of R.A. 6425 as amended by R.A. 7659,
involving possession of marijuana weighing 5 kilograms, beyond reasonable doubt.

The penalty for the possession of marijuana weighing 5 kilograms as provided under
R.A. 6425 as amended by R.A. 7659 is Death. The Court has no recourse but to sentence
the accused Jesus Garcia y Manabat to suffer the death penalty. The law is harsh but it
must be followed and obeyed, "dura lex sed lex."

SO ORDERED.

The decision was promulgated on February 20, 1996.

On February 26, 1996, the accused moved for reconsideration.10 He reiterated his position that
the uncorroborated testimony of prosecution witness Inspector Enmodias was insufficient to
establish his guilt. He further contended that he should only be punished with reclusion
perpetua.

On April 12, 1996, Judge de Guzman, Jr. filed an application for disability retirement. This Court,
in its en banc Resolution,11 dated June 18, 1996, approved his application. The effectivity of his
retirement was made retroactive to February 16, 1996.

On August 6, 1996, Acting Presiding Judge Eulogio Juan R. Bautista issued an Order 12 granting in
part accused's Motion for Reconsideration. For lack of aggravating circumstance, the accused's
penalty for illegal possession of marijuana was reduced from death to reclusion perpetua.

In the case at bar, appellant impugns his conviction on the following grounds: (a) the decision
convicting him of the crime charged was not validly promulgated as the promulgation was
made four (4) days after the retirement of the judge who penned the decision; (b) the
uncorroborated testimony of prosecution witness Senior Inspector Enmodias is insufficient to
establish his guilt beyond reasonable doubt.

First, we shall thresh out the procedural matter raised by appellant.

In his Motion for Clarification,13 appellant contends that since the decision under review was
promulgated on February 20, 1996, four (4) days after the approved retirement of Judge de
Guzman, Jr., his decision is void and has no binding effect.14

We reject this contention. Undisputably, a decision promulgated after the retirement of the
judge who signed it is null and void. Under the Rules on Criminal Procedure, 15 a decision is valid
and binding only if penned and promulgated by the judge during his incumbency. To be precise,
a judgment has legal effect only when it is rendered: (a) by a court legally constituted and in the
actual exercise of judicial powers, and (b) by a judge legally appointed, duly qualified and
actually acting either de jure or de facto.16 A judge de jure is one who exercises the office of a
judge as a matter of right, fully invested with all the powers and functions conceded to him
under the law. A judge de facto is one who exercises the office of judge under some color of
right. He has the reputation of the officer he assumes to be, yet he has some defect in his right
to exercise judicial functions at the particular time.17

In the case at bar, the decision under review was validly promulgated. Although the effectivity
of Judge de Guzman, Jr.'s disability retirement was made retroactive to February 16, 1996, it
cannot be denied that at the time his subject decision was promulgated on February 20, 1996,
he was still the incumbent judge of the RTC, Branch LX of Baguio City, and has in fact continued
to hold said office and act as judge thereof until his application for retirement was approved in
June 1996. Thus, as of February 20, 1996 when the decision convicting appellant was
promulgated, Judge de Guzman, Jr. was actually discharging his duties as a de facto judge. In
fact, as of that time, he has yet to file his application for disability retirement. To be sure, as
early as 1918, we laid down the principle that where the term of the judge has terminated and
he has ceased to act as judge, his subsequent acts in attempting to dispose of business he left
unfinished before the expiration of his term are void.18 However, in the present case, as Judge
de Guzman, Jr. was a de facto judge in the actual exercise of his office at the time the decision
under review was promulgated on February 20, 1996, said decision is legal and has a valid and
binding effect on appellant.19

On the merits, we likewise affirm appellant's conviction.

In his Memorandum20 before the trial court, appellant insisted that the prosecution was unable
to discharge its onus of establishing his guilt beyond reasonable doubt. He maintained that the
uncorroborated testimony of the prosecution's main witness, Senior Inspector Enmodias, is
incredible and unreliable. Firstly, appellant pointed out that if the police officers indeed smell
and the marijuana he was allegedly carrying while they were all on board the jeepney, they
should have immediately arrested him instead of waiting for him to alight and stroll at the Rizal
Park. Secondly, appellant faulted the procedure adopted by the arresting officers who, after the
arrest, took him to the CIS office at the Baguio Water District Compound for investigation
instead of bringing him to the nearest police station, as mandated under Section 5, Rule 113 of
the Rules on Criminal Procedure. Finally, appellant theorized that the prosecution's omission or
failure to present the other arresting officer, SPO3 Panganiban, to corroborate the testimony of
its witness Senior Inspector Enmodias was fatal to the prosecution's case as the lone testimony
of Enmodias failed to prove his guilt beyond reasonable doubt

These contentions of appellant fail to persuade. The prosecution was able to prove appellant's
guilt beyond reasonable doubt. There is nothing irregular in the manner appellant was
apprehended by the police authorities. On the contrary, we find that, without compromising
their sworn duty to enforce the law, the police officers exercised reasonable prudence and
caution in desisting to apprehend appellant inside the jeepney when they initially suspected he
was in possession of marijuana. They sought to verify further their suspicion and decided to
trail appellant when the latter alighted from the jeepney. It was only after they saw that one of
the packages with the torn wrapper contained what looked like marijuana fruiting tops did they
accost appellant and make the arrest. At that precise time, they had obtained personal
knowledge of circumstances indicating that appellant had illicit drugs in his possession. They
had reasonable ground upon which to base a lawful arrest without a warrant.1âwphi1.nêt

Neither do we find anything irregular with the turn over of appellant to the CIS Office. At the
trial, it was sufficiently clarified that this has been the practice of the arresting officers as their
office had previously arranged with the CIS for assistance with respect to investigations of
suspected criminals, the CIS office being more specialized in the area of investigation. 21 Neither
can the police officers be held liable for arbitrarily detaining appellant at the CIS office. Article
125 of the Revised Penal Code, as amended, penalizes a public officer who shall detain another
for some legal ground and fail to deliver him to the proper authorities for 36 hours for crimes
punishable by afflictive or capital penalties. In the present case, the record bears that appellant
was arrested for possession of five (5) kilos of marijuana on November 28, 1994 at 2 p.m., a
crime punishable with reclusion perpetua to death. He was detained for further investigation
and delivered by the arresting officers to the court in the afternoon of the next day. Clearly, the
detention of appellant for purposes of investigation did not exceed the duration allowed by
law, i.e., 36 hours from the time of his arrest.

Coming now to appellant's defense, we find that his simplistic version of what transpired that
fateful day utterly failed to rebut the overwhelming evidence presented by the prosecution. His
testimony is not worthy of credence. Firstly, appellant insists he did not bring any travelling bag
or personal items with him.22 However, we find it baffling that one would visit a relative in a
distant province and fail to bring clothes and other personal belongings for the duration of his
stay. Secondly, while appellant repeatedly emphasized that he went to Baguio City to visit his
brother whom he had not seen for ten years,23 his corroborating witness, de Guzman,
adamantly insisted that the first time he met appellant was only months before the
arrest.24 Thirdly, we find it altogether disturbing that appellant, without compunction,
acknowledged in open court that he lied when he initially claimed he was kicked by the police
officers while under their custody. After testifying that he was kicked and punched on the chest
and thighs, appellant unwittingly declared that he suffered no broken ribs or internal injury as a
result of the alleged mauling. Realizing the improbability of his claim of maltreatment, he
promptly altered his previous testimony. He sought to explain the lack of visible signs of
physical abuse on his body by clarifying that he was only punched, not kicked, by the police
authorities.25 Lastly, it runs counter to common experience that an innocent person, wrongly
accused of a crime and subjected to alleged physical abuse by the authorities would keep mum
about his plight. Yet, appellant, through all the sufferings he supposedly underwent, would
have us believe that he has not confided to anyone, not even to his brother, his version of the
incident, not to mention the maltreatment he supposedly endured in the hands of the police
authorities.26 In sum, appellant's defense lacks the ring of truth.

Neither did the testimony of appellant's corroborating witness aid the defense as it is equally
flawed. De Guzman testified that he saw appellant being held by two men and being forced into
a car, yet he never revealed what he saw to appellant's brother Nick. No explanation was
offered for this omission. Although De Guzman thought that the two men harbored ill
intentions in abducting appellant, he never reported the incident to the police nor told Nick,
appellant's brother, about what he witnessed. In fact, it was when Nick told him that appellant
was in jail that de Guzman allegedly mentioned to Nick what he saw days earlier.27

Treated separately, the incongruent details in the defense theory may appear innocuous at first
blush. However, the inconsistencies eventually add up, striking at the very core of appellant's
defense — the real purpose of his presence at the crime scene. The contradictions become
disturbing as they remain unsatisfactorily explained by the defense and unrebutted on record.

In sum, we find the testimony of Senior Inspector Enmodias credible to sustain a judgment of
conviction. We reiterate the familiar rule that the testimony of a single witness, if positive and
credible, is enough to convict an accused. For indeed, criminals are convicted not on the
number of witnesses presented against them, but on the credibility of the testimony of even
one witness.28 It bears stress that it is the quality, not the quantity, of testimony that
counts.29 To be sure, a corroborative testimony is not necessary where the details of the crime
have been testified to with sufficient clarity.30 As there was nothing to indicate in this case that
police officer Enmodias was inspired by ill-motive to testify mendaciously against appellant, the
trial court had every reason to accord full faith and credit to his testimony.31

On a final note: The death sentence originally imposed on appellant was correctly modified by
the trial court and reduced to reclusion perpetua as there was no aggravating circumstance
present in the commission of the crime. However, both the Decision and Order of the trial court
omitted to impose the penalty of fine.32

IN VIEW WHEREOF, the Order, dated August 6, 1996, affirming the conviction of appellant
JESUS GARCIA y MANABAT for violation of Section 8, Article II of R.A. 6425, as amended by R.A.
7659, but reducing his penalty to reclusion perpetua is AFFIRMED, subject to the modification
that the additional penalty of fine in the amount of ten million (P10,000,000.00) pesos is
likewise imposed on him. Costs against appellant.

SO ORDERED.
 G.R. NO. 111471, SEPTEMBER 26, 1994

CITY MAYOR ROGELIO R. DEBULGADO AND VICTORIA T. DEBULGADO, PETITIONERS, VS. CIVIL
SERVICE COMMISSION, RESPONDENT.

Facts:

Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros
Occidental. On 1 October 1992, petitioner Mayor appointed his wife, petitioner Victoria T.
Debulgado, as head of the Office of General Services of the City Government of San Carlos. The
appointment came about after considering three (3) other employees of the City Government.
Before the said promotion, she had been in the service of the City Government for about 32
years. She joined the City Government on 3 January 1961 as Assistant License Clerk, before she
was married to Rogelio. Through the years, she rose from the ranks until finally on 1 October
1992, she assumed the new post, and commenced discharging the functions, of General
Services Officer of San Carlos City and receiving the regular salary attached to that position.

On 16 December 1992, public respondent Civil Service Commission (CSC) received a letter from
Congressman Tranquilino B. Carmona of the First District of Negros Occidental, calling attention
to the promotional appointment issued by petitioner Mayor in favor of his wife. The CSC
directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of petitioner
Victoria. The CSC then resolved to recall the approval of the promotion by Director Escobia of
the Bacolod City CSC-Field office after a report was made by Director Caberoy of the Iloilo City
CSRO No. 6 affirming the fact the relation of the petitioners as husband and wife.

Petitioners moved for reconsideration, contending that the statutory prohibition against
nepotism was not applicable to the appointment of Victoria as General Services Officer.
Petitioners also asserted that the CSC had deprived petitioner Victoria of her right to due
process by unilaterally revoking her appointment. The motion for reconsideration was denied
on 21 July 1993.

In this petition for Certiorari, the basic contention of petitioners is that the prohibition against
nepotic appointments is applicable only to original appointments and not to promotional
appointments. They believe that because petitioner Victoria was already in the service of the
City Government before she married petitioner Mayor, the reason behind the prohibition no
longer applied to her promotional appointment. Petitioners also affirm that the promotion was
not motivated by personal reasons of petitioner Mayor since petitioner Victoria deserves to be
promoted to General Services Officer, considering her long and faithful service to the City
Government. Petitioner Mayor also claimed that the promotion was of honest intention having
been concurred by the Sanggunian and after an informal consultation with one Gregorio C.
Agdon, a supervising personnel specialist in CSC’s Bacolod Office, affirmed that promotional
appointment is not covered by the prohibition against nepotism.

Issue/s:

Whether a promotional appointment is covered by the legal prohibition against nepotism, or

whether that prohibition applies only to original appointments to the Civil Service; and

Whether the Commission had gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner Victoria after the Commission, through Director
Escobia, had earlier approved that same appointment, without giving an opportunity to
petitioner Victoria to explain her side on the matter.

Ruling:

Section 59, Book V of the Revised Administrative Code of 1987 defines nepotism as all
appointments to the national, provincial, city and municipal governments or in any branch or
instrumentality thereof, including government owned or controlled corporations, made in favor
of a relative of the appointing or recommending authority, or of the chief of the bureau or
office, or of the persons exercising immediate supervision over him. The word "relative" and
members of the family referred to are those related within the third degree either of
consanguinity or of affinity. The definition shall be read in conjunction with Section 1 Rule V of
the Omnibus Implementing rules which says that all appointments in the career service shall be
made only according to the merit and fitness to be determined as far as practicable by
competitive examinations. It further provides that all original appointments and personnel
actions shall be in accordance with these Rules and with other regulations and standards that
may be promulgated by the Commission. The same section defines personnel action any action
denoting movement or progress of personnel in the civil service which includes promotion,
transfer, reinstatement, reemployment, detail, secondment, reassignment, demotion and
separation. The definition of personnel action is reiterated in Section 1 Rule VII of the same
rules.
While the appointee may in fact be quite loyal and efficient and hardworking, that circumstance
will not prevent the application of the prohibition certainly in respect of the original
appointment. The Court is aware of the difficulties that the comprehensive prohibition against
nepotism would impose upon petitioner Victoria and others similarly situated. The prohibition
is not intended by the legislative authority to penalize faithful service. The purpose of the law
which shines through the comprehensive and unqualified language in which it was cast and has
remained for decades is precisely to take out of the discretion of the appointing and
recommending authority the matter of appointing or recommending for appointment a
relative.

The court concluded that Section 59, Book V, E.O. No. 292 means exactly what it says in plain
and ordinary language: it refers to “all appointments” whether original or promotional in
nature. The public policy embodied in Section 59 is clearly fundamental in importance, and the
Court has neither authority nor inclination to dilute that important public policy by introducing
a qualification here or a distinction there. It follows, therefore, that the appointment
of Victoria is within the prohibited class of appointments.

On the second issue, the court ruled that the action taken by the CSC was not of a disciplinary
measure upon petitioners. The CSC, in approving or disapproving an appointment, only
examines the conformity of the appointment with applicable provisions of law and whether the
appointee possesses all the minimum qualifications and none of the disqualifications. The
action of the CSC was only in implementation of Sec. 59 Book V of EO No. 292. Because the
promotional appointment in favor of petitioner Victoria was a violation of Section 59, it was null
and void as being contra legem. A void appointment cannot give rise to security of tenure on
the part of the holder of such appointment. The CSC is empowered to take appropriate action
on all appointments and other personnel actions, e.g., promotions. Such power includes the
authority to recall an appointment initially approved in disregard of applicable provisions of
Civil Service law and regulations. Section 20 of Rule VI of the Omnibus Implementing Rules
makes this clear that notwithstanding the initial approval of an appointment, it may be recalled
if it is in violation of other existing civil service law, rules and regulations.

The recall or withdrawal by the Commission of the approval which had been issued by one of its
Field Officers, Director Escobia, was accordingly lawful and appropriate, the promotional
appointment of petitioner Victoria being void “from the beginning.” The approval issued by
Director Escobia did not, as it could not, cure the intrinsic vice of that appointment. Therefore,
that there was no grave abuse of discretion amounting to lack of jurisdiction on the part of the
CSC.

Petition for Certiorari DISMISSED for lack of merit.

OMBUDSMAN Carpio-Morales v. CA and Jejomar Binay G.R. Nos. 217126-27, November 10,
2015 Doctrine of Condonation Abandoned

FACTS:

A complaint/affidavit was filed before the Office of the Ombudsman against Binay, Jr. and other
public officers and employees of the City Government of Makati (Binay, Jr., et al), accusing
them of Plunder and violation of RA 3019, otherwise known as “The Anti-Graft and Corrupt
Practices Act,” in connection with the five phases of the procurement and construction of the
Makati City Hall Parking Building.

Before Binay, Jr., et al.’s filing of their counter-affidavits, the Ombudsman issued the order
placing Binay, Jr., et al. under preventive suspension for not more than six months without pay,
during the pendency of the OMB Cases.

The Ombudsman ruled that the requisites for the preventive suspension of a public officer are
present, and that their continued stay in office may prejudice the investigation relative to the
OMB Cases filed against them.

Binay, Jr. filed a petition for certiorari before the CA seeking the nullification of the preventive
suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its
implementation.

Primarily, Binay, Jr. argued that he could not be held administratively liable for any anomalous
activity attending any of the five phases of the Makati Parking Building project since: (a) Phases
I and II were undertaken before he was elected Mayor of Makati in 2010; and (b) Phases III to V
transpired during his first term and that his re-election as City Mayor of Makati for a second
term effectively condoned his administrative liability therefor, if any, thus rendering the
administrative cases against him moot and academic.
Prior to the hearing of the oral arguments before the CA, the Ombudsman filed the present
petition before this Court, assailing the CA’s Resolution, which granted Binay, Jr.’s prayer for
TRO.

The Ombudsman claims that the CA had no jurisdiction to grant Binay, Jr.’s prayer for a TRO.

ISSUE:

Whether or not the doctrine of condonation should apply in Binay’s case.

RULING:

The petition is partly meritorious.

This Court simply finds no legal authority to sustain the condonation doctrine in this
jurisdiction. It was a doctrine adopted from one class of US rulings way back in 1959 and thus,
out of touch from – and now rendered obsolete by – the current legal regime. In consequence,
it is high time for this Court to abandon the condonation doctrine that originated from Pascual,
and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor
Garcia, and Governor Garcia, Jr. which were all relied upon by the CA.

It should, however, be clarified that this Court’s abandonment of the condonation doctrine
should be prospective in application for the reason that judicial decisions applying or
interpreting the laws or the Constitution, until reversed, shall form part of the legal system of
the Philippines.

The condonation doctrine was first enunciated in Pascual v. Hon. Provincial Board of Nueva
Ecija, There is no truth in Pascual’s postulation that the courts would be depriving the
electorate of their right to elect their officers if condonation were not to be sanctioned. In
political law, election pertains to the process by which a particular constituency chooses an
individual to hold a public office.

In this jurisdiction, there is, again, no legal basis to conclude that election automatically implies
condonation. Neither is there any legal basis to say that every democratic and republican state
has an inherent regime of condonation. If condonation of an elective official’s administrative
liability would perhaps, be allowed in this jurisdiction, then the same should have been
provided by law under our governing legal mechanisms. May it be at the time of Pascual or at
present, by no means has it been shown that such a law, whether in a constitutional or
statutory provision, exists.

Therefore, inferring from this manifest absence, it cannot be said that the electorate’s will has
been abdicated.
 GLORIA V. COURT OF APPEALS

FACTS

Abad, Bandigas, Somebang and Margallo, private respondents, are public school teachers.
Some time in September and October 1990, during the teacher’s strikes, they did not report for
work. For this reason they were administratively charged with 1) grave misconduct; 2) gross
violation of Civil Service Rules; 3) gross neglect of duty; 4) refusal to perform official duty; 5)
gross insubordination; 6) conduct prejudicial to the best interest of service and; 7) AWOL. They
were placed under preventive suspension. Investigation ended before the lapse of the 90 day
period. Margallo was dismissed from the service. The three others were suspended for 6
months. On appeal to the CA, the court mitigated the punishment to reprimand only. Hence
their reinstatement. Now the reinstated teachers are asking for back wages during the period
of their suspension and pending appeal (before the CA exonerated them).

ISSUE

Whether the teachers are entitled to backwages for the period pending their appeal if they are
subsequently exonerated.

HELD

YES, they are entitled to full pay pending their appeal. To justify the award of back wages, the
respondent must be exonerated from the charges and his suspension be unjust. Preventive
suspension pending appeal is actually punitive, and it is actually considered illegal if the
respondent is exonerated and the administrative decision finding him guilty is reversed. Hence
he should be reinstated with full pay for the period of the suspension. Section 47 (4) of
the Civil Service Decree states that the respondent “shall be considered as under preventive
suspension during the pendency of the appeal in the event he wins.” On the other hand if
his conviction is affirmed the period of his suspension becomes part of the final penalty of
suspension or dismissal. In the case at bar the respondents won in their appeal, therefore the
period of suspension pending their appeal would be considered as part of the preventive
suspension, entitling them to full pay because they were eventually exonerated and their
suspension was unjustified.
They are still entitled to back salaries even if they were still reprimanded.
 Manalo v. Gloria, G.R. 106692, Sept 1, 1994

This is a petition for" certiorari and mandamus" filed on 3 September 1992 urging us to render
judgment:jgc:chanrobles.com.ph

"(1) Declaring the 1st Indorsement dated 14 December 1990 of the respondent Secretary of
Science and Technology, (Annex "E" hereof), and Resolution No. 91-1036 of the respondent
Civil Service Commission, (Annex "G" hereof) null and void;

(2) Ordering the respondent Secretary of Science and Technology to pay the back wages of the
petitioner for the period from April 16, 1988, the date she was illegally dismissed, to June 14,
1989, the date she was reinstated, and

(3) Ordering the respondent Secretary of Science and Technology to pay the petitioner the
salary equivalent to the salary of a Planning Assistant from the time of her reinstatement and
thenceforward." 1

In their comment filed by the Office of the Solicitor General for the respondents on 2 December
1992, the respondents claim that the petitioner received a copy of respondent Civil Service
Commission’s (CSC) Resolution No. 91-1036 of 29 August 1991 on 5 September 1991 and pray
that the petition be dismissed because, on procedural grounds, it was filed out of time and the
petitioner violated paragraph 4 of Revised Circular No. 1-88 and Circular No. 28-91 and, on
substantive grounds, the decision in G.R. No. 81495 of 4 June 1990 2 cannot apply to her since
she is not a party therein. Moreover, her position was legally abolished, she did not appeal from
the abolition, and instead of joining her other co-employees in assailing the legality of their
separation from the service, she requested appointment to a position comparable to her
former position. Thus, she was appointed to the position of Clerk II on 15 May 1989, which she
accepted without reservation.

Indeed, the petitioner failed to comply with the aforesaid Circulars. She does not also deny that
she received a copy of the challenged Resolution No. 91-1036 on 5 September 1991. Pursuant
to Section 7, subdivision A (Common Provisions), Article IX of the Constitution, 3 the petitioner
had only thirty days from 5 September 1991 within which to bring the said resolution to this
Court via a petition for certiorari under Rule 65 of the Rules of Court. 4 The instant petition was
filed only on 3 September 1992 or eleven months and twenty-eight days after her receipt of a
copy of the challenged resolution, indisputably beyond the constitutionally mandated period.
On this score alone, the petition must be dismissed.chanrobles.com.ph : virtual law library
Even on its merits, the petition must likewise fail. The uncontroverted facts culled from the
pleadings of the parties, as well as from our decision of 4 June 1990 in Mendoza v. Quisumbing
5 and companion cases, render this conclusion inevitable.

Before 16 April 1988, the petitioner held the position of Planning Assistant in the Philippine
Nuclear Research Institute (PNRI), an agency of the Department of Science and Technology
(DOST), with an annual salary of P26,250.40.

On 30 January 1987, the President of the Philippines issued E.O. No. 128 reorganizing the DOST.
Section 21 thereof provides for the reorganization of the Philippine Atomic Energy Commission
(PAEC) and the PNRI. Conformably therewith, PNRI was reorganized and a new staffing pattern
or position structure, which abolished certain positions, was adopted. A list of employees who
would be retained under the new position structure was posted in the PNRI premises. Those
excluded were placed in a manpower pool for possible placements in other DOST agencies.
Appointments under the new position structure were thereafter issued to the retained
employees.

Among the abolished positions was that of the petitioner. The petitioner, however, "made an
appeal with the DOST/RAB to place her to any comparable position to which her qualification
would fit," 6 which was favorably acted upon by her appointment to the new position of Clerk II
with an annual salary of P17,640.00 on 15 May 1989. 7 She accepted her appointment as Clerk
II, a position she presently holds.

In view of our Decision of 4 June 1990 in Mendoza v. Quisumbing and more particularly of the
companion case, G.R. No. 81495 (Arizabal v. Leviste), wherein we held:chanrobles law library

"4) In G.R. No. 81495, the petition is DISMISSED. Except in the cases of those who have retired
or opted to be phased out and who have received their separation and retirement benefits, the
petitioners are ordered to retain the private respondents-employees in the reorganized
department under the new staffing pattern with positions and salaries comparable or
equivalent to their former positions but not lower than their former ranks and salaries."cralaw
virtua1aw library

the petitioner (who was neither a party in G.R. No. 81495 nor in the case before the Regional
Trial Court of Quezon City subject thereof) sent a letter to the Director of the PNRI, dated 3
September 1990, 8 requesting the payment of back salaries for the period commencing from
the abolition of her office until she was appointed as Clerk II and the payment of salary
"comparable or equivalent to her former position as Planning Assistant from the time she was
phased out up to the present." The PNRI referred this request to the DOST on 12 November
1990. 9

In a 1st Indorsement dated 14 December 1990, 10 the DOST denied the request because she
was not a party in G.R. No. 81495 and because there was no finding under Section 9 of R.A. No.
6656 (Reorganization Law) that the petitioner was illegally terminated.

On 4 March 1991, the petitioner, through counsel, sent a letter 11 to the public respondent CSC
requesting that in view of the DOST denial of her request, the CSC should "order the PNRI to
pay Ms. Manalo back wages during the period she was phased out up to her reinstatement to
the lower position of Clerk II, and, in addition that she be paid the difference between the
salary of a Planning Assistant and that of a Clerk II."cralaw virtua1aw library

In its Resolution No. 91-1036 of 29 August 1991, 12 the CSC denied the request because the
petitioner was not a party in G.R. No. 81495, and although the position of Clerk II is admittedly
lower in rank and salary than her previous position of Planning Assistant, upon her request
after she had been phased out, she assumed the duties of Clerk II without reservation.

From these facts, it is clear that both the indorsement and the resolution were not issued with
abuse, much less grave, of discretion. The petitioner was not compelled to accept the new
position. Instead of questioning the new position structure or taking the other alternatives of
either accepting separation pay or retiring from the service, she expressed preference for
appointment to the new position, voluntarily accepted the appointment thereto, and assumed
the new position without reservation. Reluctance or involuntariness in relation thereto is not
asserted in her petition and in her letters of 3 September 1990 and 4 March 1991.

The mandamus aspect of this case refers to the payment of the petitioner’s (a) "back wages . .
.for the period from April 16, 1988, the date she was illegally dismissed, to June 14, 1989, the
date she was reinstated," and (b) "salary equivalent to the salary of a Planning Assistant from
the time of her reinstatement and thenceforward." chanrobles virtual lawlibrary

Mandamus under Rule 65 of the Rules of Court is a special civil action available to an aggrieved
party when any tribunal, corporation, board, or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes a person from the use and enjoyment of a right or office to which that
person is entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law. The petitioner’s claim for "back wages" could be the appropriate subject of an
ordinary civil action and there is absolutely no showing that the said remedy is not plain,
speedy and adequate. It does not even seem that the petitioner has given some priority to her
claim. She did not claim for it in her 3 September 1990 letter to the PNRI. The first time she
mentioned it was in her 4 March 1991 letter to the CSC. Thereafter, and before she filed this
petition, she did nothing.

As for the payment of salary equivalent to that of a Planning Assistant, it is clear that the
petitioner does not seek reinstatement to the position of Planning Assistant. Since she had in
fact asked for her retention in the PNRI and for her appointment to a new position and was
accordingly appointed as Clerk II, a position which she voluntarily accepted and which she
continues to hold until now, estoppel, which is clearly present, bars her obtainment of the
desired relief.

We are not persuaded by the suggestion that the petitioner is only seeking execution of the
decision in Arizabal v. Leviste. The petitioner is not a party therein and is not, therefore,
entitled to its execution.

Nor do we agree with the plea in the dissenting opinion that we take this case as one for
mandamus in the light of our decision in Cristobal v. Melchor. 13 The factual milieu therein
does not obtain in this case. Unlike Cristobal who was never reinstated despite his persistent
pleas, the herein petitioner asked for and was appointed to the new position of Clerk II, which
she accepted without reservation. In Cristobal, this Court considered the viability of an action
for mandamus and the grant of favorable relief thereunder even if the said action was filed
after one year from the accrual of the cause of action, because it was the "act of the
government through its responsible officials more particularly then Executive Secretary Amelito
Mutuc and his successors which contributed to the alleged delay in the filing of Cristobal’s . . .
complaint for reinstatement." 14 It appeared therein that Cristobal and the other dismissed
employees were assured by Executive Secretary Mutuc that he would work for their
reinstatement; however, Mr. Mutuc was replaced by other Executive Secretaries to whom
Cristobal "over and over again presented his request for reinstatement and who gave the same
assurance that Cristobal would be recalled and re-employed at the ‘opportune time.’" This
"continued promise of government officials concerned led Cristobal to bide his time and wait
for the Office of the President to comply with its commitment." 15

Even granting that the petitioner can avail herself of the writ of mandamus, we find no special
or cogent reason to justify acceptance of this petition as an exception to this Court’s policy
concerning the hierarchy of courts in relation to cases where it has concurrent jurisdiction with
the Regional Trial Court and the Court of Appeals. In People v. Cuaresma, 16 this Court
stated:chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

"A last word. This court’s original jurisdiction to issue writs of certiorari (as well as prohibition,
mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this
Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also shared by this court, and by the
Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court),
although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter’s
competence to issue the extraordinary writs was restricted by those ‘in aid of its appellate
jurisdiction.’ This concurrence of jurisdiction is not, however, to be taken as according to parties
seeking any of the writs an absolute, unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against
first level (’inferior’) courts should be filed with the Regional Trial Court, and those against the
latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction
to issue these writs should be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established policy. It is a policy
that is necessary to prevent inordinate demands upon the Court’s time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to prevent further over-
crowding of the Court’s docket. Indeed, the removal of the restriction of the jurisdiction of the
Court of Appeals in this regard, supra — resulting from the deletion of the qualifying phrase, ‘in
aid of its appellate jurisdiction’ — was evidently intended precisely to relieve this Court pro
tanto of the burden of dealing with applications for extraordinary writs which, but for the
expansion of the Appellate Court’s corresponding jurisdiction, would have had to be filed with
it." (Citations omitted)

And in Defensor-Santiago v. Vasquez, 17 this Court said:jgc:chanrobles.com.ph

"One final observation. We discern in the proceedings in this case a propensity on the part of
petitioner, and, for that matter, the same may be said of a number of litigants who initiate
recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief
directly from this Court despite the fact that the same is available in the lower courts in the
exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought
therein. This practice must be stopped, not only because of the imposition upon the precious
time of this Court but also because of the inevitable and resultant delay, intended or otherwise,
in the adjudication of the case which often has to be remanded or referred to the lower court
as the proper forum under the rules of procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court
will not entertain direct resort to it unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling circumstances justify availment of a
remedy within and calling for the exercise of our primary jurisdiction."cralaw virtua1aw library

WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered DISMISSING the
instant petition.

No pronouncement as to costs.

SO ORDERED.

Constantino-David v. Pangandaman-Gania, G.R. 156039, August 14, 2003

456 Phil. 273

BELLOSILLO, J.:

"A system of procedure is perverted from its proper function when it multiplies impediments to
justice without the warrant of clear necessity," so says Cardozo - an observation especially apt
in the instant case involving the payment of back wages and other benefits resulting from the
illegal dismissal of an employee due to improper personnel and non-disciplinary action. The
disquieting procedural steps risked by respondent before the Court of Appeals, the tendency of
the appellate court to overlook most of them, the doggedness of the Solicitor General to
venture others, when neither the court a quo nor the parties to the case appear perturbed that
elementary rules of procedure were either indulgently brushed aside or subtly exploited one
after the other, do not leave us ensnared in borderline technical maneuvers, or so it is said,
being too impotent to address the pith of this controversy.

Respondent Zenaida D. Pangandaman-Gania is a Director II and Manila Information and

Liaisoning Officer of the Mindanao State University (MSU). She has been holding this position
after the confirmation of her appointment by the MSU Board of Regents on 1 June 1995.

On 2 October 1998 respondent received a copy of Special Order No. 477-P dated 28 September
1998 designating a certain Agnes Mangondato as Acting Director in her place in view of the
alleged expiration of her term and was no longer allowed to report for work. She verified the
status of her appointment and found out that her appointment was not submitted to the Civil
Service Commission for attestation.

Respondent immediately brought the matter to the CSC for a ruling on the validity of the
termination of her employment.[1] In Resolution No. 00-1265 dated 24 May 2000 the CSC
upheld her dismissal for lack of attestation and prolonged absence without official leave from
the time she was removed from her post in September 1998 as a result of Special Order No.
477-P.

Respondent moved for reconsideration. In Resolution No. 01-0558 dated 8 March 2001 the CSC
found merit in her motion, declared her removal from office as illegal, exonerated her from the
charge of being on absence without official leave and ordered her reinstatement as Director II
and Manila Information and Liaisoning Officer of MSU but disallowed the payment of back
salaries for the period she was not working as a result of the illegal dismissal. The CSC explained
the non-payment of her back wages -

Be that as it may, the incumbency of Dr. Gania is governed by the principle of "quantum
meruit" (as you work so shall you earn). In other words, her entitlement to compensation
depends on her actual performance of work. Short of approval by the Commission, the
appointment while already effective, by itself is not a basis for payment of salary but the
assumption of duties of her office x x x x Such being the case, Dr. Gania is not entitled to
compensation for the period that she was not reporting to work.[2]

MSU moved for reconsideration of CSC Resolution No. 01-0558 dated 8 March 2001, while
respondent moved for its early execution. In Resolution No. 01-1225 dated 19 July 2001, the
CSC denied MSU's motion for reconsideration and ordered its President to allow respondent to
assume and exercise the functions of Manila Information and Liaisoning Officer.

MSU appealed from the denial of its motion for reconsideration under Rule 43 of the 1997
Rules of Civil Procedure, docketed as CA-G.R. No. SP-66188, to the Court of Appeals, but the
appellate court did not issue any restraining order or injunction to prevent the execution of the
resolution on appeal.

Respondent did not seek a review of any of the resolutions of the CSC including the order
denying back salaries and other benefits for the period she was out of work. She instead
pursued her prayer for reinstatement but MSU refused to employ her back. Hence, she was
compelled to file a second motion for the execution of CSC Resolution No. 01-0558 dated 8
March 2001, citing Sec. 82 of the Revised Uniform Rules on Administrative Cases in the Civil
Service, which states that "[t]he filing and pendency of petition for review with the Court of
Appeals or certiorari with the Supreme Court shall not stop the execution of the final decision
of the Commission unless the Court issues a restraining order or an injunction."

In Resolution No. 01-1616 dated 4 October 2001 the CSC granted respondent's motion and held
that "CSC Resolution No. 01-0558 dated 8 March 2001 has attained finality and must be
immediately implemented," as it again ordered the MSU President to reinstate respondent.

On 8 October 2001 respondent for the first time questioned the portion of CSC Resolution No.
01-0558 dated 8 March 2001 prohibiting the payment of back wages and other benefits to her
for the period that her employment was terminated, and moved for the modification of the
resolution by granting her the relief prayed for.

On 29 October 2001 the Court of Appeals dismissed MSU's petition for review on the ground
that the certificate of non-forum shopping was not personally signed by pertinent officers of
the university but by its counsel of record.[3] MSU moved for reconsideration of the dismissal.

On 12 December 2001, there being still no action on her request to be paid her back salaries
and other benefits, respondent moved for an immediate ruling thereon.

On 21 February 2002 the Court of Appeals denied MSU's motion for reconsideration of the
dismissal of its petition for review for lack of merit.

On 28 February 2002 the CSC in Resolution No. 02-0321 denied respondent's motion -

Since nowhere in the records does it show that [respondent Gania] actually assumed and
performed the duties of her position, it logically follows that there can be no basis for the grant
of back salaries in her favor.[4]

Without the aid of an attorney, respondent appealed CSC Resolution No. 02-0321 dated 28
February 2002 to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure,
docketed as CA-G.R. SP No. 69668. In her petition for review, she did not mention that she did
not seek a review of CSC Resolution No. 01-0558 dated 8 March 2001 which was the real object
of her appeal.[5] In addition, she impleaded only the petitioners herein, Chairperson Karina
Constantino-David and Commissioners Jose F. Erestain Jr. and Waldemar V. Valmores of the
CSC, but did not name as party-respondent the Mindanao State University or any of its officers.

In its Comment before the Court of Appeals, the CSC through the Office of the Solicitor General
(OSG) rebuffed respondent's claim for back wages since she allegedly failed to actually assume
the position of Director II and Manila Information and Liaisoning Officer of MSU. But the CSC
did not assail the procedural infirmities of respondent's petition and appeared contented to
refute just the substantial arguments thereof.

On 28 October 2002 the Court of Appeals partially found merit in respondent's petition for
review.[6] Apparently failing to note that respondent did not appeal from the denial of her
claim for payment of back salaries in CSC Resolution No. 01-0558 dated 8 March 2001, which
she found objectionable, the Court of Appeals concluded that -

x x x petitioner had assumed and had been exercising the functions [at MSU] as early as June
1995, after the MSU Board of Regents approved her permanent appointment which was issued
earlier x x x on April 10, 1995. It was only in September 1998, when she was terminated from
service on the alleged ground of expiration of term, that she was prevented from performing
the functions of her position.[7]

The Court of Appeals ruled that back wages should be paid to respondent from the time of her
illegal dismissal until she was ordered reinstated by the CSC as Director II of MSU on 8 March
2001, but excluded the period after the CSC had ordered MSU to admit respondent back to
work since the damages she suffered for that period were chargeable in the proper forum
against the MSU President who in bad faith refused to abide by the relevant CSC resolutions.

On 3 January 2003 the OSG filed the instant petition for review under Rule 45, 1997 Rules of
Civil Procedure, allegedly in behalf of the petitioners named herein, and also signed for them
the verification and certification of non-forum shopping. The OSG asserted as grounds for
review the principle recognizing finality to factual findings of quasi-judicial agencies as well as
its puzzling statement that "[w]hile the dismissal of herein respondent was declared illegal, she
was, however, not exonerated from the charges. Hence, respondent is not entitled to back
wages."[8] Once again the OSG did not call attention to procedural defects in the petition of
respondent before the Court of Appeals.

Respondent filed in her own behalf a Comment claiming that the CSC cannot be a party-
petitioner in a case where its decision is the subject of review, citing Civil Service Commission v.
Court of Appeals.[9] As to whether respondent actually assumed the duties of Director II, she
referred not only to the finding of the Court of Appeals that she had assumed office and worked
for MSU as early as June 1995 but also to the voluminous records of MSU showing that she
reported for work until her illegal dismissal in September 1998.[10] She also manifested that
she was reinstated to her job on 18 September 2002 while the proceedings before the Court of
Appeals were ongoing although she was not paid her salary and other benefits. In
another Manifestation before this Court, she affirmed that her salary as well as RATA and other
benefits for the month of September 2002 were paid on 23 April 2003.

We deny the instant petition for review. It is true that respondent had lost the right to ask for
the modification of CSC Resolution No. 01-0558 dated 8 March 2001 and to demand
compensation for her back salaries and other benefits. She did not move for the
reconsideration of this resolution within fifteen (15) days from receipt thereof[11] nor did she
file a petition for its review within the same period under Rule 43 of the 1997 Rules of Civil
Procedure.[12] To be sure, both the CSC and respondent herself admitted the finality of
the Resolution and acted upon it when she was granted an order for its execution.

Meanwhile, MSU filed its petition for review with the Court of Appeals (CA-G.R. No. SP-66188)
assailing CSC Resolution No. 01-0558 dated 8 March 2001 and CSC Resolution No. 01-1225
dated 19 July 2001 denying MSU's motion for reconsideration.

Ordinarily, under the foregoing circumstances, neither the Civil Service Commission nor the
Court of Appeals has jurisdiction to direct the substantial amendment of CSC's relevant
resolutions upon the behest of respondent.[13] The principle governing ordinary appeal from
the Regional Trial Court to the Court of Appeals applies suppletorily[14] mutatis mutandis -

x x x where all the parties have either thus perfected their appeals by filing their notices of
appeal in due time and the period to file such notice of appeal has lapsed for those who did not
do so, then the trial court loses jurisdiction over the case as of the filing of the last notice of
appeal or the expiration of the period to do so for all the parties.[15]

This rule is also articulated in Associated Bank v. Gonong[16] where we held that only after all
the parties' respective periods to appeal shall have lapsed that the court loses its jurisdiction
over the case. What is left as residual jurisdiction of the Civil Service Commission pertains only
to matters for the protection and preservation of the rights of the parties which do not involve
any matter litigated by the appeal or the immediate execution of its resolutions under
the Revised Uniform Rules on Administrative Cases in the Civil Service. This is to ensure the
orderly disposition of the case at both the levels of the CSC and the appellate court.[17]

Nonetheless, we cannot inflexibly dwell on the defect of a belated appeal and coldly thwart a
review of the instant case. For it cannot be denied that even after acknowledging the finality
of Resolution No. 01-0558 dated 8 March 2001, the CSC still entertained the twin motions of
respondent on 8 October 2001 and 12 December 2001 to modify the same resolution and insert
therein an order for the payment of back wages. The CSC in fact promulgated Resolution No.
02-0321 dated 28 February 2002 denying respondent's importunate motions for the reason
that she allegedly did not report for work but not because they were already time-barred.

No doubt, the Civil Service Commission was in the legitimate exercise of its mandate under Sec.
3, Rule I, of the Revised Uniform Rules on Administrative Cases in the Civil Service that
"[a]dministrative investigations shall be conducted without necessarily adhering strictly to the
technical rules of procedure and evidence applicable to judicial proceedings." This authority is
consistent with its powers and functions to "[p]rescribe, amend and enforce rules and
regulations for carrying into effect the provisions of the Civil Service Law and other pertinent
laws" being the central personnel agency of the Government.[18]

Furthermore, there are special circumstances in accordance with the tenets of justice and fair
play that warrant such liberal attitude on the part of the CSC and a compassionate like-minded
discernment by this Court.[19] To begin with, respondent was consistently denied
reinstatement by the responsible officers of MSU and vehemently barred from resuming her
previous position. The first order for her return to work was issued on 8 March 2001 which was
followed by repeated personal appeals for the immediate execution of the CSC
resolution.[20] Thereafter, when respondent was still forced out of work, the CSC issued its
second and third orders on 19 July 2001 and 4 October 2001, respectively, for the President of
MSU to restore her to the item from which she was illegally dismissed. As these private
requests and official directives were cruelly rejected by her employer and the period of her
unemployment was unduly prolonged, respondent had no choice and was compelled to ask for
back salaries and other benefits to offset the callous repudiation of what was due her.

To prevent respondent from claiming back wages would leave incomplete the redress of the
illegal dismissal that had been done to her and amount to endorsing the wrongful refusal of her
employer or whoever was accountable to reinstate her. A too-rigid application of the pertinent
provisions of the Revised Uniform Rules on Administrative Cases in the Civil Service as well as
the Rules of Court will not be given premium where it would obstruct rather than serve the
broader interests of justice in the light of the prevailing circumstances in the case under
consideration.

As commented in Obut v. Court of Appeals,[21] "we cannot look with favor on a course of
action which would place the administration of justice in a straightjacket for then the result
would be a poor kind of justice, if there would be justice at all. Verily, judicial orders x x x are
issued to be obeyed, nonetheless a non-compliance is to be dealt with as the circumstances
attending the case may warrant. What should guide judicial action is the principle that a party-
litigant is to be given the fullest opportunity to establish the merits of his complaint or defense
rather than for him to lose life, liberty, honor or property on technicalities."

The same principle of liberality may also be drawn upon to gloss over the failure of respondent
to implead MSU as party-respondent in the petition before the Court of Appeals while joining
only herein petitioners as Chairman and Commissioners of the CSC to answer her petition.
While as a rule it would have been necessary to adhere to this practice,[22] in the instant case
no one among the Court of Appeals, the CSC and the Office of the Solicitor General saw it fit to
name or cause to be included MSU as party-respondent. Indeed, the Comment of the OSG
argued on the merits as if it was acting in unison with respondent's employer, stressing all
possible claims that may be alleged to defeat respondent's petition. Ultimately, what is crucial
is that both CSC and MSU are part of the same bureaucracy that manages and supervises
government personnel, and as such, represent a common interest on the question raised in the
petition to be defended by the same core of lawyers from the OSG or the Office of the
Government Corporate Counsel (OGCC).[23]

Justifiably, where no injury has been done as probably all lines of reasoning to oppose the
petition have been asserted by parties of the same principal and brought to the fore in the
proceedings a quo, and considering further that the underlying principle in the administration
of justice and application of the rules is substance rather than form, reasonableness and fair
play in place of formalities, we deem it apposite to except this particular case from the rigid
operation of the procedure for the joinder of parties.

In any event, none of these procedural defects were raised as an issue on appeal and are now
deemed waived. Of course we are not surprised that the OSG did not touch on these
procedural issues and would seemingly prefer a ruling squarely on the issue of respondent's
entitlement to back wages. As its services are paid for by taxpayers' money, the OSG ought to
be the foremost officers of the court who in suitable cases must delve into the real concerns.

Unfortunately, the OSG also treaded upon technically precarious grounds when it filed the
petition in the name of the CSC and signed the verification and certificate of non-forum
shopping in behalf of its client. Sure enough, respondent vigorously objects to the standing of
the CSC as party-petitioner in the instant petition, citing our ruling in Civil Service Commission v.
Court of Appeals.[24]

That the CSC may appeal from an adverse decision of the Court of Appeals reversing or
modifying its resolutions which may seriously prejudice the civil service system is beyond
doubt. In Civil Service Commission v. Dacoycoy[25] this Court held that the CSC may become
the party adversely affected by such ruling and the aggrieved party who may appeal the
decision to this Court.

The situation where the CSC's participation is beneficial and indispensable often involves
complaints for administrative offenses, such as neglect of duty, being notoriously undesirable,
inefficiency and incompetence in the performance of official duties, and the like, where the
complainant is more often than not acting merely as a witness for the government which is the
real party injured by the illicit act. In cases of this nature, a ruling of the Court of Appeals
favorable to the respondent employee is understandably adverse to the government, and
unavoidably the CSC as representative of the government may appeal the decision to this Court
to protect the integrity of the civil service system.

The CSC may also seek a review of the decisions of the Court of Appeals that are detrimental to
its constitutional mandate as the central personnel agency of the government tasked to
establish a career service, adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness and courtesy in the civil service, strengthen the merit and
rewards system, integrate all human resources development programs for all levels and ranks,
and institutionalize a management climate conducive to public accountability. Nonetheless, the
right of the CSC to appeal the adverse decision does not preclude the private complainant in
appropriate cases from similarly elevating the decision for review.[26]

The ruling in Civil Service Commission v. Dacoycoy was further explained in Civil Service
Commission v. Court of Appeals[27] where we held that the real party-in-interest in a case
involving the non-renewal of the appointments of contractual employees would be the person
who was allegedly dismissed from work and not the CSC, for it is he who would be benefited or
injured by his reinstatement or non-reinstatement and who is present, available and competent
to bring the matter on appeal. Like a judge whose order or decision is being assailed, the CSC
should not be joined in the petition as it is not a combatant in a proceeding where opposing
parties may contend their respective positions without the active participation of the CSC.[28]

In the instant case, the CSC is not the real party-in-interest as this suit confronts the Decision of
the Court of Appeals to award back wages for respondent arising from an illegitimate personnel
and non-disciplinary action of MSU, which is different from an administrative disciplinary
proceeding where the injured party is the government. We fail to see how the
assailed Decision can impair the effectiveness of government, damage the civil service system
or weaken the constitutional authority of the CSC so as to authorize the latter to prosecute this
case. As a rule, the material interest for this purpose belongs to MSU since it instigated the
illegal dismissal and the execution of the Decision devolves upon it.[29]
Regrettably, however, respondent cannot insist that MSU be the indispensable party in the
instant petition since the latter was not designated as respondent in the petition before the
Court of Appeals. It would truly be a case of having her cake and eating it too for respondent to
require MSU to undertake the present appeal from the assailed Decision when it was deprived
of standing in the appellate court proceedings and unilaterally booted out as a prospective
litigant herein. Hence, by force of circumstances, the CSC has the standing to initiate the instant
petition for review.

Moreover, the OSG executed the verification and certificate of non-forum shopping in behalf of
the CSC, citing as bases therefor City Warden of the Manila City Jail v.
Estrella,[30] and Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc.[31] Some
clarification is in order to avoid perpetuating a misconception.

City Warden of the Manila City Jail v. Estrella is not an authority for the OSG to execute
verification and certification of non-forum shopping on its own as legal representative of client
agencies. The reason is that the OSG was in that case acting as a "People's Tribune" regardless
of the official opinion of the relevant government agencies therein -

That the City Warden appears to have acquiesced in the release order of the trial court by his
compliance therewith does not preclude the Solicitor General from taking a contrary position
and appealing the same. The Solicitor General's duty is to present what he considers would
legally uphold the best interest of the Government[32] (underscoring added).

Hence, there was no necessity for the verification and certificate of non-forum shopping to be
executed by the City Warden himself. To be sure, it would have been awkward and irregular for
the City Warden to do so given that his position was not the same as those reflected in the
petition of the OSG. No doubt, the real party-in-interest is the OSG itself as representative of
the State.[33] In Pimentel v. Commission on Elections[34] we held -

x x x the Solicitor General may, as it has in instances take a position adverse and contrary to
that of the Government on the reasoning that it is incumbent upon him to present to the court
what he considers would legally uphold the best interest of the government although it may
run counter to a client's position x x x x As we commented on the role of the Solicitor General in
cases pending before this Court, "This Court does not expect the Solicitor General to waver in
the performance of his duty. As a matter of fact, the Court appreciates the participation of the
Solicitor General in many proceedings and his continued fealty to his assigned task. He should
not therefore desist from appearing before this Court even in those cases he finds his opinion
inconsistent with the Government or any of its agents he is expected to represent. The Court
must be advised of his position just as well."[35]

But the rule is different where the OSG is acting as counsel of record for a government agency.
For in such a case it becomes necessary to determine whether the petitioning government body
has authorized the filing of the petition and is espousing the same stand propounded by the
OSG. Verily, it is not improbable for government agencies to adopt a stand different from the
position of the OSG since they weigh not just legal considerations but policy repercussions as
well. They have their respective mandates for which they are to be held accountable, and the
prerogative to determine whether further resort to a higher court is desirable and
indispensable under the circumstances.

The verification of a pleading, if signed by the proper officials of the client agency itself, would
fittingly serve the purpose of attesting that the allegations in the pleading are true and correct
and not the product of the imagination or a matter of speculation, and that the pleading is filed
in good faith. Of course, the OSG may opt to file its own petition as a "People's Tribune" but the
representation would not be for a client office but for its own perceived best interest of the
State.

The case of Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., is not also a
precedent that may be invoked at all times to allow the OSG to sign the certificate of non-forum
shopping in place of the real party-in-interest. The ruling therein mentions merely that the
certification of non-forum shopping executed by the OSG constitutes substantial
compliance with the rule since "the OSG is the only lawyer for the petitioner, which is a
government agency mandated under Section 35, Chapter 12, Title III, Book IV, of the 1987
Administrative Code (Reiterated under Memorandum Circular No. 152 dated May 17, 1992) to
be represented only by the Solicitor General."[36]

By its very nature, "substantial compliance" is actually inadequate observance of the

requirements of a rule or regulation which are waived under equitable circumstances[37] to
facilitate the administration of justice[38] there being no damage or injury caused by such
flawed compliance.[39] This concept is expressed in the statement "the rigidity of a previous
doctrine was thus subjected to an inroad under the concept of substantial compliance."[40] In
every inquiry on whether to accept "substantial compliance," the focus is always on the
presence of equitable conditions to administer justice effectively and efficiently without
damage or injury to the spirit of the legal obligation.

We have ruled previously[41] that substantial compliance with the certificate of non-forum
shopping is sufficient. The equitable circumstances pleaded to show substantial compliance
include the proximity of the filing of the complaint to the date of the effectivity of the circular
requiring the certificate and the belated filing thereof, but the mere submission thereof after
the filing of a motion to dismiss does not ipso facto operate as a substantial compliance.[42] As
summarized in Bank of the Philippine Islands v. Court of Appeals,[43] "[w]hen a strict and literal
application of the rules on non-forum shopping and verification will result in a patent denial of
substantial justice, they may be liberally construed. This guideline is especially true when the
petitioner has satisfactorily explained the lapse and fulfilled the requirements in its motion for
reconsideration."

The fact that the OSG under the 1987 Administrative Code is the only lawyer for a government
agency wanting to file a petition, or complaint for that matter, does not operate per se to vest
the OSG with the authority to execute in its name the certificate of non-forum shopping for a
client office. For, in many instances, client agencies of the OSG have legal departments which at
times inadvertently take legal matters requiring court representation into their own hands
without the intervention of the OSG.[44] Consequently, the OSG would have no personal
knowledge of the history of a particular case so as to adequately execute the certificate of non-
forum shopping; and even if the OSG does have the relevant information, the courts on the
other hand would have no way of ascertaining the accuracy of the OSG's assertion without
precise references in the record of the case. Thus, unless equitable circumstances which are
manifest from the record of a case prevail, it becomes necessary for the concerned government
agency or its authorized representatives to certify for non-forum shopping if only to be sure
that no other similar case or incident is pending before any other court.

We recognize the occasions when the OSG has difficulty in securing the attention and
signatures of officials in charge of government offices for the verification and certificate of non-
forum shopping of an initiatory pleading. This predicament is especially true where the period
for filing such pleading is non-extendible or can no longer be further extended for reasons of
public interest such as in applications for the writ of habeas corpus, in election cases or where
sensitive issues are involved. This quandary is more pronounced where public officials have
stations outside Metro Manila.

But this difficult fact of life within the OSG, equitable as it may seem, does not excuse it
from wantonly executing by itself the verification and certificate of non-forum shopping. If the
OSG is compelled by circumstances to verify and certify the pleading in behalf of a client
agency, the OSG should at least endeavor to inform the courts of its reasons for doing
so, beyond instinctively citing City Warden of the Manila City Jail v. Estrella and Commissioner
of Internal Revenue v. S.C. Johnson and Son, Inc.
Henceforth, to be able to verify and certify an initiatory pleading for non-forum shopping when
acting as counsel of record for a client agency, the OSG must (a) allege under oath the
circumstances that make signatures of the concerned officials impossible to obtain within the
period for filing the initiatory pleading; (b) append to the petition or complaint such authentic
document to prove that the party-petitioner or complainant authorized the filing of the petition
or complaint and understood and adopted the allegations set forth therein, and an affirmation
that no action or claim involving the same issues has been filed or commenced in any court,
tribunal or quasi-judicial agency; and, (c) undertake to inform the court promptly and
reasonably of any change in the stance of the client agency.

Anent the document that may be annexed to a petition or complaint under letter (b) hereof,
the letter-endorsement of the client agency to the OSG, or other correspondence to prove that
the subject-matter of the initiatory pleading had been previously discussed between the OSG
and its client, is satisfactory evidence of the facts under letter (b) above. In this exceptional
situation where the OSG signs the verification and certificate of non-forum shopping, the court
reserves the authority to determine the sufficiency of the OSG's action as measured by the
equitable considerations discussed herein.

Finally, after our lengthy discourse on the technical imperfections afflicting the instant case, we
resolve the substantive issue of whether respondent is entitled to receive back salaries and
other benefits for the period that she was illegally dismissed. Obviously, the answer is in the
affirmative.

There is more than substantial evidence in the record consisting of the general payroll and
attendance sheets to prove that petitioner assumed and exercised the functions of Director II
and Manila Information and Liaisoning Officer at MSU as early as June 1995 after the MSU
Board of Regents approved her permanent appointment which was issued earlier on 10 April
1995.[45] It cannot be refuted that in September 1998 she was terminated from the service on
the alleged ground of expiration of her term and stopped from performing the functions of her
position, and subsequently reinstated to her job upon the declaration of the CSC that her
dismissal from the service was illegal. Clearly, the CSC gravely erred when thereafter it ruled
that respondent did not actually assume and perform the duties of her position so as to deprive
her of back wages and other benefits.

In Gabriel v. Domingo[46] this Court held that an illegally dismissed government employee who
is later ordered reinstated is entitled to back wages and other monetary benefits from the time
of his illegal dismissal up to his reinstatement. This is only fair and sensible because an
employee who is reinstated after having been illegally dismissed is considered as not having left
his office and should be given a comparable compensation at the time of his reinstatement.

Respondent cannot be faulted for her inability to work or to render any service from the time
she was illegally dismissed up to the time of her reinstatement. The policy of "no work, no pay"
cannot be applied to her, for such distressing state of affairs was not of her own making or
liking even as her family suffered tremendously as a consequence of her removal and while she
was jobless. Verily, to withhold her back salaries and other benefits during her illegal dismissal
would put to naught the constitutional guarantee of security of tenure for those in the civil
service.

We also agree with the Court of Appeals that MSU cannot be made to pay all accruing back
salaries and other benefits in favor of respondent. There are allegations to the effect that
officials of MSU disobeyed in bad faith the writ of execution issued by the CSC. In Gabriel v.
Domingo[47] we held that if the illegal dismissal, including the refusal to reinstate an employee
after a finding of unlawful termination, is found to have been made in bad faith or due to
personal malice of the superior officers then they will be held personally accountable for the
employee's back salaries; otherwise, the government disburses funds to answer for such
arbitrary dismissal.[48] This rule is also enunciated in Secs. 38[49] and 39[50] of Book I, E.O.
292, and in Secs. 53,[51] 55,[52] 56[53] and 58[54] of Rule XIV of the Omnibus Civil Service
Rules and Regulations.

Accordingly, MSU as a government institution must compensate respondent with back salaries
and other benefits only from the time of her illegal dismissal, which according to the case
record began sometime in October 1998, until the motion for reconsideration of the MSU was
denied and a writ of execution for respondent's reinstatement as Director II and Manila
Information and Liaisoning Officer was issued. The reckoning period is not 8 March 2001 as
determined by the appellate court but 19 July 2001 when CSC Resolution No. 01-1225 was
promulgated wherein the motion for reconsideration of the MSU was denied with finality and
the latter was explicitly commanded to allow respondent to assume and exercise the functions
of Director II and Manila Information and Liaisoning Officer. For, a final decision of the CSC is
immediately executory unless a motion for reconsideration is filed in the meantime.[55]

The back wages and other benefits accruing after 19 July 2001 are to be treated separately
since they must be collected in the proper forum wherein the assertions of malice and ill will in
the failure to reinstate respondent to her post are threshed out and the concerned parties
given the full opportunity to be heard. Until such separate proceeding has been instituted and
decided, it is premature to fix the liability for this portion of respondent's back wages and other
benefits upon either the government as represented by MSU or the accountable officers
thereof.

WHEREFORE, the instant Petition for Review is DENIED. The Decision of the Court of Appeals
dated 28 October 2002 is AFFIRMED except that the cut-off date for the payment of back
salaries to respondent should be adjusted from the date of her illegal dismissal to "19 July
2001," instead of "8 March 2001," since it was only on 19 July 2001 that MSU's motion for
reconsideration was denied and the order of execution finally issued by the Civil Service
Commission specifically directing MSU to reinstate respondent Pangandaman-Gania and
exercise the functions of her position with the promulgation of CSC Resolution No. 01-1225.

This is without prejudice to respondent's claim for back salaries and other benefits in the
appropriate forum corresponding to the period after 19 July 2001 until she is actually reinstated
as Director II and Manila Information and Liaisoning Officer.

SO ORDERED.

EDUARDO BALITAOSAN, Petitioner, v. THE SECRETARY OF EDUCATION, CULTURE AND

SPORTS, Respondent.

DECISION

CORONA, J.:

Before us is a petition for review of the April 15, 1999 resolution 1 of the Court of Appeals
denying petitioner’s motion for partial reconsideration of its decision dated November 9, 1998
which ordered petitioner’s reinstatement, without backwages.chanrob1es virtua1 1aw 1ibrary

Petitioner was among the public school teachers who were dismissed by then DECS Secretary
Isidro Cariño for ignoring the return to work order while participating in the teacher’s mass
strike at Liwasang Bonifacio from September to October, 1990.

Records reveal that an administrative complaint was filed against petitioner, together with a
certain Dalangin Sarmiento and Filomeno Rafer, charging them with grave misconduct, gross
neglect of duty, gross violation of the Civil Service Law and Rules of Reasonable Office
Regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the
best interests of the service and absence without leave.

Petitioner failed to give his explanation on the charges against him despite due notice. Thus, he
was meted preventive suspension for 90 days and consequently dismissed from the service in a
DECS decision dated November 29, 1990.

Petitioner appealed said decision to the Merit System Protection Board but his appeal was
dismissed for being filed out of time.

Aggrieved, petitioner appealed to the Civil Service Commission but the appeal and the
subsequent motion for reconsideration were both denied in the resolutions dated September
8, 1994 and April 14, 1998, respectively.

Petitioner then sought recourse from the Court of Appeals via a petition for certiorari which
yielded positive results, obtaining for petitioner an order of reinstatement without, however,
any award of backwages in his favor. Thus:chanrob1es virtual 1aw library

WHEREFORE, the petition is hereby given DUE COURSE. Resolution Nos. 94-4979 and 980819 of
the Civil Service Commission are SET ASIDE. Accordingly, the Department of Education, Culture
and Sports’ Decision in Case No. DECS 90-118 is MODIFIED — instead the petitioner is only
guilty of Conduct Prejudicial to the Best Interest of the Service for which he is meted out the
penalty of suspension from the service for a period of six (6) months without pay considering
that the petitioner has been out of the service for more than seven (7) years now as a result of
his dismissal from the service, the Department of Education, Culture and Sports is hereby
ORDERED to immediately reinstate petitioner Eduardo Balitaosan.

SO ORDERED. 2

Not wholly satisfied with said decision, petitioner moved for its partial reconsideration, praying
for an award of backwages, but the same was denied in the above assailed resolution dated
April 15, 1999.

Thus, the instant petition.

Petitioner alleges that the Court of Appeals committed reversible error when it refused to apply
the ruling in the case of Fabella, Et. Al. v. Court of Appeals, Et. Al. 3 In the said case, the Court,
finding the investigation committee to be without competent jurisdiction, declared that all
proceedings undertaken were necessarily void and thus could not provide the legal basis for the
suspension or dismissal of the petitioners. The Court declared a denial of due process because
the inclusion of a representative of a teacher’s organization in the investigating committee,
which was indispensable to ensure an impartial tribunal, was not complied with. Consequently,
it ordered the payment of back salaries, allowances, bonuses and other benefits and
emoluments which had accrued to the teachers involved during the entire period of their
preventive suspension and/or dismissal from the service.chanrob1es virtua1 1aw 1ibrary

Petitioner’s reliance on Fabella is totally misplaced.

As aptly observed by the Court of Appeals, in Fabella, the jurisdiction and composition of the
investigation committee was put in issue from the very start. When the Court found the
investigation committee to be without competent jurisdiction, it declared all the proceedings
undertaken by said committee void; therefore, it could not have provided the legal basis for the
suspension and dismissal of private respondents therein.

In the case at bar, however, aside from the catch-all and sweeping allegation of "denial of due
process," petitioner never questioned the competence and composition of the investigating
committee. He belatedly raised this issue for the first time in the petition for review before the
Court of Appeals. Thus, the appellate court acted correctly in rejecting petitioner’s argument.

Issues raised for the first time on appeal cannot be considered because a party is not permitted
to change his theory on appeal. To allow him to do so is unfair to the other party and offensive
to the rules of fair play, justice and due process. 4

In its Decision, the Court of Appeals justified petitioner’s reinstatement:chanrob1es virtual 1aw
library

While We view with approbation the authority of the Department of Education, Culture and
Sports to punish the public school teachers for engaging in the prohibited action, that is, staging
and joining the strike, We, particularly, take note here the seemingly compartmentalized
treatment the petitioner suffered from the respondent Civil Service Commission. As petitioner’s
appeal to the Merit Systems Protection Board of the Civil Service Commission was rebuffed for
having been filed out of time and eventually dismissed petitioner, that of Filomeno Rafer’s,
after filing a third motion for reconsideration from the resolution of the respondent
commission dismissing him from the service, decided Rafer’s case on the merits and reduced
his penalty from dismissal from the service to suspension for six (6) months (Rollo, p. 29). We
are bewildered actually, as Our assessment is that the petitioner and Rafer are similarly
situated, why the respondent Commission failed to give the same cordiality given to Rafer. Not
only that, in several cases involving public school teachers, the respondent Commission
modified the penalty of dismissal from the service to a mere reprimand (Alipat v. Civil Service
Commission, CA-G.R. SP No. 38312). 5

The fact is that petitioner participated in the mass action which in turn resulted in the filing of
charges against him and his subsequent dismissal later on. His reinstatement was not the result
of exoneration but an act of liberality by the Court of Appeals. Accordingly, petitioner’s claim
for backwages for the period during which he was not allowed to work must be denied.

The general rule is that a public official is not entitled to any compensation if he has not
rendered any service. No work, no pay. Since petitioner did not render any service during the
period for which he is now claiming his salaries, there is no legal or equitable basis to order the
payment thereof. 6

WHEREFORE, the petition is hereby DENIED. The Resolution of the Court of Appeals dated April
15, 1999 denying petitioner’s claim for backwages is AFFIRMED.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

Joseph Ejercito Estrada v. Gloria Macapagal Arroyo, G.R 146738

FACTS:

On October 4, 2000, then President Joseph Estrada was embroiled in a corruption scandal after
a close friend, Ilocos Sur Governor Luis Chavit Singson, revealed that Estrada and his family
allegedly received money from Jueteng lords.

The revelation prompted Senator Teofisto Guingona to deliver a privilege speech, detailing the
anomalies done by President Estrada. The public now calls for Estrada’s resignation. Eventually,
he had to face an impeachment trial in the Senate by December 7.

On January 16, 2001, in a vote of 11-10, the Senator-Judges ruled against opening the second
envelope which allegedly contains evidence wherein Estrada held P3.3 billion in a secret bank
account under the name “Jose Velarde.”

At this point, everyone snapped. The prosecutors tendered their resignation – prompting the
Senate to postpone the impeachment proceedings indefinitely. People started marching
towards EDSA to call for Estrada’s resignation. On January 19, both the AFP and PNP declared
that they are withdrawing their support of the Estrada administration.

On January 20, (12 noon), Chief Justice Davide administered Vice President Gloria Macapagal
Arroyo’s oath as the new President of the Republic of the Philippines. At around 2:30 PM,
Estrada and his family hurriedly left Malacanang. Estrada then issued the following statement:

“At twelve o’clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity
and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service of
our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people.

MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA”

It also appears that on the same day, January 20, 2001, he signed the following letter (sent to
House Speaker Fuentebella and Senate President Pimentel):

“Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office. By
operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.)
JOSEPH EJERCITO ESTRADA”

On January 22, now President Arroyo started discharging her functions as President. She
appointed new cabinet members, ambassadors and special envoys. Foreign state leaders also
expressed their recognition to Arroyo’s administration (including then President George Bush
from the White House). Congress issued House Resolution 175 to express support to the new
admin. The court also issued the following Resolution in Administrative Matter No. 01-1-05-SC,
to wit:

“A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her
Oath of Office as President of the Republic of the Philippines before the Chief Justice — Acting
on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of
the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the
Court, dated January 20, 2001, which request was treated as an administrative matter, the
court Resolve unanimously to confirm the authority given by the twelve (12) members of the
Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of
Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20,
2001.

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party.”

The Senate then passed Resolution No. 83 which officially moved to terminate the
impeachment proceeding. Senator Miriam Defensor-Santiago stated “for the record” that she
voted against the closure of the impeachment court on the grounds that the Senate had failed
to decide on the impeachment case and that the resolution left open the question of whether
Estrada was still qualified to run for another elective post.

Estrada on the other hand is now facing charges of plunder, graft, and corruption under the
office of the Ombudsman. He then filed a writ of preliminary injunction to enjoin the
Ombudsman from “conducting any further proceedings in or any other criminal complaint that
may be filed in his office, until after the term of petitioner as President is over.

Thru another counsel, Estrada filed for Quo Warranto. He prayed for judgment to confirm him
as the lawful and incumbent President of the Republic of the Philippines temporarily unable to
discharge the duties of his office, and declaring respondent (Arroyo) to have taken her oath as
and to be holding the Office of the President, only in an acting capacity.

ISSUES:

WON Estrada officially resigned as a president.

WON Estrada is only temporarily unable to act as president.

WON the prosecution of Estrada should be enjoined due to prejudicial publicity.

HELD:

(1) YES. – please also read Section 8, Article VII of the Constitution

We hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement: (1) he acknowledged
the oath-taking of the respondent as President of the Republic albeit with reservation about its
legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of
peace and in order to begin the healing process of our nation.
He also called on his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could
not be attained if he did not give up the presidency. The press release was petitioner’s
valedictory, his final act of farewell.

As to the second letter (addressed to Fuentebella and Pimentel), the court held that it is
wrapped in mystery since Estrada did not reveal the circumstances that led to its preparation. It
was all too easy for him to tell the Filipino people in his press release that he was temporarily
unable to govern and that he was leaving the reins of government to respondent Arroyo for the
time bearing.

Under any circumstance, however, the mysterious letter cannot negate the resignation of
Estrada. If it was prepared before the press release as a later act. If, however, it was prepared
after the press release, still, it commands scant legal significance. Estrada’s resignation from the
presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the
resignation is the result of his reputation by the people.

Petitioner contends that the impeachment proceeding is an administrative investigation that,

under section 12 of RA 3019, bars him from resigning. The court held otherwise. The exact
nature of an impeachment proceeding is debatable.

Even assuming arguendo that it is an administrative proceeding, it can not be considered

pending at the time Estrada resigned because the process already broke down when a majority
of the senator-judges voted against the opening of the second envelope, the public and private
prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of
Appearance, and the proceedings were postponed indefinitely. There was, in effect, no
impeachment case pending against Estrada when he resigned.

(2) NO – please read section 11, Article VII of the Constitution.

By virtue of the said letter, Estrada has officially resigned and has in effect, relinquished his
powers as president.

Even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent Arroyo is the de jure,
president made by a co-equal branch of government cannot be reviewed by this Court.

(3) NO

Estrada also contends that respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his
guilt. He submits that the respondent Ombudsman has developed bias and is all set file the
criminal cases violation of his right to due process.

The court held that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the
barrage of publicity.

There is not enough evidence to warrant this Court to enjoin the preliminary investigation of
the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile
headlines to discharge his burden of proof.

The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial
notice by this Court especially in light of the denials of the respondent Ombudsman as to his
alleged prejudice and the presumption of good faith and regularity in the performance of
official duty to which he is entitled.

PETITION IS DISMISSED.

G.R. No. 126576 March 5, 1997

MAYOR RICARDO M. ANGOBUNG, petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, and ATTY. AURORA S. DE ALBAN, respondents.

HERMOSISIMA, JR., J.:

Before us on certiorari is a petition seeking to annul and set aside Resolution No. 96-
29511 dated October 15, 1996 issued by public respondent Commission on Elections
(COMELEC) which (1) approved the Petition for Recall filed and signed by only one registered
voter — herein private respondent Ma. Aurora Siccuan de Alban, against petitioner —
incumbent Mayor Ricardo Angobung; (2) set the further signing of said petition by the rest of
the registered voters of Tumauini, Isabela on November 9, 1996; and (3) in case the said
petition is signed by at least 25% of the total number of registered votes in Tumauini, Isabela,
scheduled the recall election on December 2, 1996.

On October 25, 1996, this court issued a Temporary Restraining Order2 enjoining public
respondent COMELEC from implementing and enforcing Resolution No. 96-2951.
The facts of this case are not disputed.

Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela in the local
elections of 1995. He garnered 55% of all the votes cast. Private respondent de Alban was also a
candidate in said elections.

Sometime in early September, 1996, private respondent filed with the Local Election Registrar
of Tumauini, Isabela, a Petition for Recall3 against petitioner. On September 12, 1996,
petitioner received a copy of this petition. Subsequently said petition was forwarded to the
Regional Office in Tuguegarao, Cagayan and then to the main office of COMELEC in Manila, for
approval.

Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson submitted to
the COMELEC En Banc, a Memorandum4 dated October 8, 1996 recommending approval of the
petition for recall filed by private respondent and its signing by other qualified voters in order
to garner at least 25% of the total number of registered voters as required by Section 69(d) of
the Local Government Code of 1991.

In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson, the
COMELEC en banc issued the herein assailed Resolution No. 96-2951.

Petitioner now attacks the aforementioned resolution as being unconstitutional and therefore
invalid, on two main grounds: (1) that the resolution approved the Petition for Recall albeit
same was signed by just one person in violation of the statutory 25% minimum requirement as
to the number of signatures supporting any petition for recall; and (2) that the resolution
scheduled the recall election within one (1) year from the May 12, 1997 Barangay Elections.

In at least three (3) urgent motions, private respondent has sought the lifting of the Temporary
Restraining Order issued last October 25, 1996 on the twin grounds (1) that the issue of the
one-year bar on recall elections has been resolved in the case of Paras v. COMELEC5,
promulgated on November 4, 1996; and (2) that the procedure prescribed by Resolution No.
96-2951 involving petition signing upon initiation of even just one person, is no different from
that provided for in COMELEC Resolution No. 2272 which was upheld as constitutional in the
1991 cases of Sanchez, et al. v. COMELEC6 and Evardone v. COMELEC7.

Private respondent is correct in saying that in the light of our pronouncement in Paras
v. COMELEC8, the recall election scheduled on December 2, 1996 in the instant case cannot be
said to be barred by the May 12, 1997 Barangay Elections. In construing the meaning of the
term, "regular local election" in Section 74 of the Local Government Code of 1991 which
provides that "no recall shall take place within one (1) year . . . immediately preceding a regular
local election," we ruled that for the time bar to apply, the approaching regular local election
must be one where the position of the official to be recalled, is to be actually contested and
filled by the electorate. Thus, in the instant case where the time bar is being invoked by
petitioner mayor in view of the approaching Barangay Elections in May 1997, there can be no
application of the one year bar, hence no invalidity may be ascribed to Resolution No. 96-2951
on this ground.

We, however, find petitioner's second ground to be impressed with merit.

Before the enactment of the 1991 Local Government Code, the recall of public officials voted
for in popular elections, was governed by Sections 54 to 59 of Batas Pambansa Blg. 337,
otherwise known as the Local Government Code of 1983. Pursuant to Section 59 thereof, which
states that "the Commission on Elections shall conduct and supervise the process of and
election on recall . . . and, in pursuance thereof, promulgate the necessary rules and
regulations," the COMELEC promulgated Resolution No. 2272 Sections 4 and 5 of which provide
as follows:

Sec. 4. How instituted. — The recall of an elective provincial, city or municipal official shall be
commenced by the filing of a duly verified notice of recall containing the address and precinct
number of the voter filing the notice, and the name of the official sought to be recalled, his
position, and the ground(s) for the recall. Each notice shall refer to only one official.

The notice shall be filed in triplicate with the local Election Registrar if the recall involves a city
or municipal official, or with the Provincial Election Supervisor if it involves a provincial official,
one copy of which shall be posted upon receipt thereof on the bulletin board in the
city/municipal hall.

If the recall involves a provincial official, two additional copies of the notice shall also be
furnished by the voter filing the notice to the Election Registrar of each city and municipality in
the province, one copy of which shall be posted upon receipt thereof on the bulletin board in
the city/municipal hall.

In every case, the voter filing the notice of recall shall furnish a copy thereof to the official
sought to be recalled, the Commission on Elections in Manila and the Election Records and
Statistics Department of the Commission.

Sec. 5. Schedule and place of signing of the petition. — The Election Registrar shall submit to
the Commission on Elections, not later than ten days from filing of the notice of recall, the
schedule of the signing of the petition to recall for approval and funding . . .9

In the case of Sanchez v. COMELEC 10, petitioners therein contended that the aforegoing
"Resolution No. 2272 is unconstitutional there being no legislative enactment yet on [the]
mechanism of recall as mandated under Sec. 3, Art. X of the Constitution". 11 It is true, as
private respondent asseverates, that we upheld the constitutionality of Resolution No. 2272,
but not because we found nothing constitutionally infirm about the procedure of allowing the
initiatory recall petition to be filed by only one person. The issue in Sanchez was not this
questioned procedure but the legal basis for the exercise by the COMELEC of its rule-making
power in the alleged absence of a grant of such power by an enabling statute on recall. Thus we
ruled:

While it is true that Sec. 3, Art. X of the Constitution mandates the Congress to enact a local
government code providing among others for an effective mechanism of recall, nothing in said
provision could be inferred the repeal of BP 337, the local government code existing prior to
the adoption of the 1987 Constitution. Sec. 3, Art. X of the Constitution merely provides that
the local government code to be enacted by Congress shall be "more responsive" than the one
existing at present. Until such time that a more responsive and effective local government code
is enacted, the present code shall remain in full force and effect. Thus, under Sec. 3, Art. XVIII,
(a)ll existing laws, decrees, executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.

Considering that the present local government code (BP 337) is still in effect, respondent
COMELEC's promulgation of Resolution No. 2272 is therefore valid and constitutional, the same
having been issued pursuant to Sec. 59 of BP 337. It reads:

Sec. 59. Supervision by the Commission on Elections. — The Commission on Elections shall
conduct and supervise the process of and election on recall . . . and, in pursuance thereof,
promulgate the necessary rules and regulations. 12

We reiterated the foregoing ruling in the case of Evardone v.

COMELEC 13 in this wise:

Article XVIII, Section 3 of the 1987 Constitution expressly provides that all existing laws not
inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or
revoked. Republic Act No. 7160 providing for the Local Government Code of 1991, approved by
the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title
Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992
and therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the
present case.

xxx xxx xxx

Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local
elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and
supervise the process of and election on recall and in the exercise of such powers, promulgate
the necessary rules and regulations. . . . Thus, pursuant to the rule-making power vested in
respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and
constitutional. Consequently, the respondent COMELEC had the authority to approve the
petition for recall and set the date for the signing of said petition. 14

In Sanchez and Evardone, the COMELEC-prescribed procedure of (1) allowing the recall petition
to be filed by at least one person or by less than 25% of the total number of registered voters
and then (2) inviting voters to sign said petition on a date set for that purpose, was never put to
issue. As this is the crux of the present constitutional challenge, the proper time has come for
this court to issue a definitive ruling on the matter.

Apropos for starters is the following chronicle of the evolution of the mechanism of recall as a
mode of removing a public officer by direct action of the people, essayed in the case of Garcia
v. COMELEC 15:

Recall is a mode of removal of a public officer by the people before the end of his term of
office. The people's prerogative to remove a public officer is an incident of their sovereign
power and in the absence of constitutional restraint, the power is implied in all governmental
operations. Such power has been held to be indispensable for the proper administration of
public affairs. Not undeservedly, it is frequently described as a fundamental right of the people
in a representative democracy.

Recall as a mode of removal of elective local officials made its maiden appearance in section 2
of Article XI entitled Local Government, viz.:

Sec. 2. The Batasang Pambansa shall enact a local government code which may not thereafter
be amended except by a majority vote of all its Members, defining a more responsive and
accountable local government structure with an effective system of recall . . .

The Batasang Pambansa then enacted BP 337 entitled, "The Local Government Code of 1983.
Section 54 of its Chapter 3 provided only one mode of initiating the recall elections of local
election officials, i.e., by petition of at least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned . . . .

Our legal history does not reveal any instance when this power of recall as provided by BP 337
was exercised by our people.
In February, 1986, however, our people more than exercised their right of recall for they
resorted to revolution and they booted out of office the highest elective officials of the land.
The successful use of people power to remove public officials who have forfeited the trust of
the electorate led to its firm institutionalization of the 1987 Constitution. Its Article XIII
expressly recognized the Role and Rights of People's Organizations . . . .

Section 3 of its Article X also reiterated the mandate for Congress to enact a local government
code which "shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanisms of recall, initiative
and referendum . . . . In response to this constitutional call, Congress enacted R.A. 7160,
otherwise known as the Local Government Code of 1991, which took effect on January 1,
1992." 16

Section 69 (d) of the Local Government Code of 1991 expressly provides that "recall of any
elective . . . municipal . . . official may also be validly initiated upon petition of at least twenty-
five percent (25%) of the total number of registered voters in the local government unit
concerned during the election in which the local official sought to be recalled was elected". The
law is plain and unequivocal as to what initiates recall proceedings: only a petition of at least
25% of the total number of registered voters, may validly initiate recall proceedings. We take
careful note of the phrase, "petition of at least twenty-five percent (25%)" and point out that
the law does not state that the petition must be signed by at least 25% of the registered voters;
rather, the petition must be "of" or by, at least 25% of the registered voters, i.e., the petition
must be filed, not by one person only, but by at least 25% of the total number of registered
voters. This is understandable, since the signing of the petition is statutorily required to be
undertaken "before the election registrar or his representative, and in the presence of a
representative of the official sought to be recalled, and in a public place in the . . . municipality .
. . " 17. Hence, while the initiatory recall petition may not yet contain the signatures of at least
25% of the total number of registered voters, the petition must contain the names of at least
25% of the total number of registered voters in whose behalf only one person may sign the
petition in the meantime.

We cannot sanction the procedure of the filing of the recall petition by a number of people less
than the foregoing 25% statutory requirement, much less, the filing thereof by just one person,
as in the instant case, since this is indubitably violative of clear and categorical provisions of
subsisting law.

Our legislators did not peg the voter requirement at 25% out of caprice or in a vacuum. They
knew that this is the requirement under a majority of the constitutions and recall statutes in
various American states to the same extent that they were aware of the rationale therefor.
While recall was intended to be an effective and speedy remedy to remove an official who is
not giving satisfaction to the electorate regardless of whether or not he is discharging his full
duty to the best of his ability and as his conscience dictates 18 it is a power granted to the
people who, in concert, desire to change their leaders for reasons only they, as a collective, can
justify. In other words, recall must be pursued by the people, not just by one disgruntled loser
in the elections or a small percentage of disenchanted electors. Otherwise, its purposes as a
direct remedy of the people shall be defeated by the ill motives of a few among them whose
selfish resort to recall would destabilize the community and seriously disrupt the running of
government.

A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum
voter requirement in American recall statutes, unmistakably reveals the vigilance of lawmakers
against the abuse of the power of recall. For instance, the Supreme Court of Illinois held in the
case of In Re Bower 19 that:

[t]he only logical reason which we can ascribe for requiring the electors to wait one year before
petitioning for a recall election is to prevent premature action on their part in voting to remove
a newly elected official before having had sufficient time to evaluate the soundness of his
political policies and decisions. We view the statutory provision requiring the number of
petition signers to equal at least 45% of the total votes case in the last general election for
mayor as a further attempt to insure that an official will not have to defend his policies against
frivolous attacks launched by a small percentage of disenchanted electors. 20

Along the same lines, the Supreme Court of Colorado held in the case of Bernzen, v. City of
Boulder 21 that:

[t]he framers, by requiring that a recall petition contain the signatures of at least 25% of all
votes cast in the last election for all candidates for the position which the person sought to be
recalled occupies, assured that a recall election will not be held in response to the wishes of a
small and unrepresentative minority. However, once at least 25% of the electorate have
expressed their dissatisfaction, the constitution reserves the recall power to the will of the
electorate. 22

And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan echoed the foregoing
posturings in this wise:

Much of what has been said to justify a limit upon recall clearly not provided or contemplated
by the Constitution has revealed fears about an irresponsible electorate . . . . A much cited
Nebraska case pertaining to a Nebraska recall statute provides some answers which are equally
applicable to the Michigan constitutional right of recall:
. . . Doubtless the provision requiring 30 per cent of the electors to sign the petition before the
council [is] compelled to act was designed to avoid such a contingency. The Legislature
apparently assumed that nearly one-third of the electorate would not entail upon the taxpayers
the cost of an election unless the charges made approved themselves to their understanding
and they were seriously dissatisfied with the services of the incumbent of the office. 24

In the instant case, this court is confronted with a procedure that is unabashedly repugnant to
the applicable law and no less such to the spirit underlying that law. Private respondent who is
a lawyer, knows that Section 69 (d) of the Local Government Code plainly provides that recall is
validly initiated by a petition of 25% of the total number of registered voters. Notwithstanding
such awareness, private respondent proceeded to file the petition for recall with only herself as
the filer and initiator. She claims in her petition that she has, together with many others in
Tumauini, Isabela, lost confidence in the leadership of petitioner. But the petition does not bear
the names of all these other citizens of Tumauini who have reportedly also become anxious to
oust petitioner from the post of mayor. There is no doubt that private respondent is truly
earnest in her cause, and the very fact that she affixed her name in the petition shows that she
claims responsibility for the seeming affront to petitioner's continuance in office. But the same
cannot be said of all the other people whom private respondent claims to have sentiments
similar to hers. While the people are vested with the power to recall their elected officials, the
same power is accompanied by the concomitant responsibility to see through all the
consequences of the exercise of such power, including rising above anonymity, confronting the
official sought to be recalled, his family, his friends, and his supporters, and seeing the recall
election to its ultimate end. The procedure of allowing just one person to file the initiatory
recall petition and then setting a date for the signing of the petition, which amounts to inviting
and courting the public which may have not, in the first place, even entertained any displeasure
in the performance of the official sought to be recalled, is not only violative of statutory law but
also tainted with an attempt to go around the law. We can not and must not, under any and all
circumstances, countenance a circumvention of the explicit 25% minimum voter requirement in
the initiation of the recall process.

WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby GRANTED.

COMELEC Resolution No. 96-2951 is hereby DECLARED NULL and VOID and accordingly SET
ASIDE.

The RESTRAINING ORDER heretofore issued is hereby made permanent.

Costs against private respondent.

SO ORDERED.