Laurel vs Desierto
5%, the law does not, however, fix the revenue targets to be
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
Held: 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.
ABAKADA Guro Partylist vs Purisima
Facts: Petitioners seeks to prevent respondents from
implementing and enforcing Republic Act (RA) 9335. R.A. 9335 was
enacted to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau
of Customs (BOC). The law intends to encourage BIR and BOC
officials and employees to exceed their revenue targets by
providing a system of rewards and sanctions through the creation
of a Rewards and Incentives Fund (Fund) and a Revenue
Performance Evaluation Board (Board). It covers all officials and
employees of the BIR and the BOC with at least six months of
service, regardless of employment status.
Petitioners, invoking their right as taxpayers filed this petition
challenging the constitutionality of RA 9335, a tax reform
legislation. They contend that, by establishing a system of rewards
and incentives, the law “transforms the officials and employees of
the BIR and the BOC into mercenaries and bounty hunters” as they
will do their best only in consideration of such rewards. Thus, the
system of rewards and incentives invites corruption and
undermines the constitutionally mandated duty of these officials
and employees to serve the people with utmost responsibility,
integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of
rewards and incentives only to officials and employees of the BIR
and the BOC violates the constitutional guarantee of equal
protection. There is no valid basis for classification or distinction as
to why such a system should not apply to officials and employees of
all other government agencies.
In addition, petitioners assert that the law unduly delegates the
power to fix revenue targets to the President as it lacks a sufficient
standard on that matter. While Section 7(b) and (c) of RA 9335
provides that BIR and BOC officials may be dismissed from the
service if their revenue collections fall short of the target by at least
7.
achieved. Instead, the fixing of revenue targets has been delegated
to the President without sufficient standards. It will therefore be
easy for the President to fix an unrealistic and unattainable target in
order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight
committee on the ground that it violates the doctrine of separation
of powers. While the legislative function is deemed accomplished
and completed upon the enactment and approval of the law, the
creation of the congressional oversight committee permits
legislative participation in the implementation and enforcement of
the law.
Issues: Whether or not the doctrine of separation of powers has
been violated in the creation of a congressional oversight
committee.
Held: Based from the ruling under Macalintal v. Commission on
Elections, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily constitutes
an encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is
integral to the checks and balances inherent in a democratic system
of government. It may in fact even enhance the separation of
powers as it prevents the over-accumulation of power in the
executive branch.
In the case of Macalintal, in the discussion of J. Puno. the power of
oversight embraces all activities undertaken by Congress to
enhance its understanding of and influence over the
implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress: (a) to
monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to
eliminate executive waste and dishonesty, (d) to prevent executive
usurpation of legislative authority ,and (d) to assess executive
conformity with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of
legislative power itself and integral to the checks and balances
inherent in a democratic system of government. With this backdrop,
it is clear that congressional oversight is not unconstitutional per
se, meaning, it neither necessarily constitutes an encroachment on
the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the
checks and balances inherent in a democratic system of
government. It may in fact even enhance the separation of powers
as it prevents the over-accumulation of power in the executive
branch.
However, to forestall the danger of congressional encroachment
"beyond the legislative sphere," the Constitution imposes two basic
and related constraints on Congress. It may not vest itself, any of its
committees or its members with either executive or judicial power.
And, when it exercises its legislative power, it must follow the
"single, finely wrought and exhaustively considered, procedures"
specified under the Constitution including the procedure for
enactment of laws and presentment. Thus, any post-enactment
congressional measure such as this should be limited to scrutiny
and investigation. In particular, congressional oversight must be
confined to the following:(1) scrutiny based primarily on Congress'
power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matter
pertaining to their departments and its power of confirmation
and(2) investigation and monitoring of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.
Any action or step beyond that will undermine the separation of
powers guaranteed by the Constitution. Legislative vetoes fall in
this class.
Figueroa vs People
Facts: On March 24, 1992, in the RTC of Davao City, the city
prosecutor of Davao, at the instance of one Aproniano Rivera, filed
an Information for libel under Article 355 in relation to Article 360
of the Revised Penal Code against the herein petitioners, Tony N.
Figueroa and Rogelio J. Flaviano.
That on or about April 9, 1991, the accused writer and publish-
editor of the Footprints of the People's Daily Forum, respectfully,
published the following text:
Bangkerohan public market these days is no different from the US
Times Square. Bullies, thugs, hooligans and gyppers roam with
impunity, some using organizational clout as a ploy to keep
themselves from obvious exposure. Some leeches, like a certain
Aproniano Rey Rivera, our sources say, are lording it over like the
city's sprawling vegetable and meat complex has become an
apportioned bailiwick.
Rivera, apparently a non-Visayan pseudobully flaunting with his tag
as president of a vendor's federation, has intimated a good number of
lowly hawkers. This is a confirmed fact, our sources believe. And our
independent eveasdroppers have come with a similar perception of a
man who continues to lead a federation when, in the first place, he
has no business being in Davao or in Bankerohan.
Often, Mr. Re (King?) Rivera strolls the stretches which criss-cross the
Bankerohan confines with the arrogance of a tribal chieftain; the only
differences, however, are that: he uses no G-strings, speaks in some
strange Luzon lingo and twang, and has no solid leadership. Our
reports have finely outlined the mechanics of Rivera's tactics despite
assertions the man is nothing but a paper tiger conveniently propped
up by federation members loyal to his sometime indecent role as a
sachem.
This man, the sources add, is backed by powerful city government
hooligans who, it was reported, have direct hand in the planned
manipulation in the distribution of stalls to privileged applicants.
Even if he has reportedly sold his interest in the public market, which
should be reason enough for him to resign from his position, Rivera
still carries the false aura of intimidating poor vendors and imposing
his insensible remarks about what must be done about the
governance of Bangkerohan.
Sometimes its hard to compel a man with Rivera's mind about the
nuances of honorable resignation. May iba d'yan na pakapalan na
lang ng mukha!
xxx xxx xxx
Rivera, however, must be consoled in knowing he's not alone with his
dirty antics. Romy Miclat, a president of a meat vendors group in
Bankerohan, and his board member, Erning Garcia, have tacitly
followed the way of the thugs, floating little fibs to gullible victims.
Our moles have gathered the due are seeling [sic] the new public
market stalls for P9,000 with the assurances that the buyer gets a
display area ordinarily occupied by two applicants. A lot more have
fallen prey to the scheme, and more the blindly swallowing all the
books the two are peddling.
This dilemma has been there for so long, but the city hall, RCDP, and
the city council have continuously evaded the vicious cabal of men out
to derail the raffling of the stalls to applicants. Some believe strongly
this is odd, but they can only whimper at their helplessness against
power-brokers who have taken over the dominance of Bangkerohan.
One of the likely victims in this filthy machination are the sinapo
vendors who have become explosively furious over the snafu they are
facing because of the manipulation of stalls inside Bangkerohan.
Insiders continuo[u]sly tell of woeful tales about how they have been
given runarounds by many so-called public servants, but they have
maintained their composures quite curiously. They are talking,
however, of anger which, our sources [s]ay, may end up with a bloody
retaliation. This probability is looming more lucid every day the
officials handling the Bangkerohan stall mess are condoning their
plight. Even politicos are oddly silent about the whole controversy for
some unknown reasons. It looks like the alleged schemes perpetrated
by Rivera, Miclat and Garcia will remain unperturbed, no thanks to
power-brokers. which newspaper was read by the people throughout
Davao City, to the dishonor, discredit and contempt upon said
Aproniano Rivera.
The RTC ruled against petitioners. The CA affirmed the lower
court’s decision. However, petitioners remain unfazed and
challenged the CA’s ruling, averring that the CA was mistaken for
holding that the private complainant is not a public officer, hence
the published article cannot be considered within the purview of
privileged communication.
Issue: WON private respondent Rivera .
Held: YES.
It is next contended by the petitioners that Rivera is a public officer.
On this premise, they invoke in their favor the application of one of
the exceptions to the legal presumption of the malicious nature of
every defamatory imputation, as provided for under paragraph (2),
Article 354 of the Revised Penal Code, to wit:
Art. 354. Requirement for publicity. - Every defamatory imputation
is presumed to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown, except in the
following cases:
xxx xxx xxx
A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative, or other official proceedings
which are not of confidential nature, or of any statement, report, or
speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions.
Again, as correctly found by both the trial court and the CA, Rivera
is not a public officer or employee but a private citizen. Hence, the
published article cannot be considered as falling within the ambit of
privileged communication within the context of the above-quoted
provision of the Penal Code.
A public office is the right, authority and duty, created and
conferred by law, by which an individual is invested with some
portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The individual so
invested is a public officer. The most important characteristic which
distinguishes an office from an employment or contract is that the
creation and conferring of an office involve a delegation to the
individual of some of the sovereign functions of government, to be
exercised by him for the benefit of the public; that some portion of
the sovereignty of the country, either legislative, executive or
judicial, attaches, to be exercised for the public benefit. Unless the
powers conferred are of this nature, the individual is not a public
officer.[8]
Clearly, Rivera cannot be considered a public officer. Being a
member of the market committee did not vest upon him any
sovereign function of the government, be it legislative, executive or
judicial. As reasoned out by the CA, the operation of a public market
is not a governmental function but merely an activity undertaken by
the city in its private proprietary capacity. Furthermore, Rivera's
membership in the market committee was in representation of the
association of market vendors, a non-governmental organization
belonging to the private sector.
Indeed, even if we were to pretend that Rivera was a public officer,
which he clearly is not, the subject article still would not pass
muster as Article 354(2), supra, of the Revised Penal Code expressly
requires that it be a fair and true report, made in good faith, without
any comments or remarks. Even a mere cursory glance at the article
reveals that it is far from being that.
Javier vs Sandiganbayan
Facts: Javier was the private sector representative in the
National Book Development Board (NBDB), which was created by
R.A. 8047, otherwise known as the “Book Publishing Industry
Development Act.” R.A. No. 8047 provided for the creation of the
NBDB, which was placed under the administration and supervision
of the Office of the President. The NBDB is composed of eleven (11)
members who are appointed by the President, five (5) of whom
come from the government, while the remaining six (6) are chosen
from the nominees of organizations of private book publishers,
printers, writers, book industry related activities, students and the
private education sector.
Petitioner was appointed to the Governing Board for a term of one
year. During that time, she was also the President of the Book
Suppliers Association of the Philippines (BSAP). She was on a
hold-over capacity in the following year. On September 14, 1998,
she was again appointed to the same position and for the same
period of one year. Part of her functions as a member of the
Governing Board is to attend book fairs to establish linkages with
international book publishing bodies. On September 29, 1997, she
was issued by the Office of the President a travel authority to attend
the Madrid International Book Fair in Spain on October 8--12, 1997.
Based on her itinerary of travel, she was paid P139,199.00 as her
travelling expenses. Unfortunately, petitioner was not able to attend
the scheduled international book fair.
Issue: Whether or not Javier is a public officer. (YES)
Held: YES, Javier is a public officer. A public office is the right,
authority and duty, created and conferred by law, by which, for a
given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for
the benefit of the public. The individual so invested is a public
officer.
Notwithstanding that petitioner came from the private sector to sit
as a member of the NBDB, the law invested her with some portion
of the sovereign functions of the government, so that the purpose of
the government is achieved. In this case, the government aimed to
enhance the book publishing industry as it has a significant role in
the national development. Hence, the fact that she was appointed
from the public sector and not from the other branches or agencies
of the government does not take her position outside the meaning
of a public office.
The Court is not unmindful of the definition of a public officer
pursuant to the Anti­ Graft Law, which provides that a “public
officer” includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified
or exempt service receiving compensation, even nominal, from the
government. Thus, pursuant to the Anti- Graft Law, one is a public
officer if one has been elected or appointed to a public office.
Petitioner was appointed by the President to the Governing Board
of the NDBD.
Article 203 of the Revised Penal Code defines a “public officer” as
any person who, by direct provision of the law, popular election or
appointment by competent authority, shall take part in the
performance of public functions in the Government of the
Philippine Islands, or shall perform in said Government or in any of
its branches public duties as an employee, agent, or subordinate
official, of any rank or classes.
Abeja vs Tanada
Facts: In 1992, Rosauro Radovan was declared the winner of
the mayoralty elections in Pagbilao, Quezon. His rival, Evelyn Abeja,
filed an election protest where she questioned the results in 22
precincts. Radovan filed a counter protest where he questioned the
results in 36 precincts with counterclaim for damages. Abeja then
caused the revision of the ballots covering the 22 precincts and paid
the expenses therefor. Abeja then urged Radovan to cause the
revision of the 36 precincts he is questioning. Radovan however
refused and so Abeja filed a motion that a judgment be rendered
based on the results from the 22 precincts. The original judge did
not rule on the motion before he was transferred. Before the judge
could be replaced, Radovan died. Radovan was then substituted by
the vice mayor (Conrado de Rama) and Radovan’s wife, Ediltrudes.
Ediltrudes substituted his deceased husband insofar as the latter’s
counterclaim for damages is concerned.
In 1993, the new judge, Federico Tañada ruled that Abeja’s motion
is premature because the 36 precincts are not yet revised. Tañada
agreed with Radovan that the 36 precincts may only be revised if
Abeja can show that she (Abeja) leads by at least one point vote
over Radovan.
Issue: Whether or not the judge is correct.
Held: No. There is no rule in election protests cases which
states that a protestant (Abeja) must first show that she won in the
precincts she is contesting before evidence on the protestee’s
(Radovan) counter-protest can be had. This will render the
protestant’s case to be at the mercy of the protestee who can just
prolong the case until his term is over.
Also, the Supreme Court ruled that the substitution of Ediltrudes for
her deceased husband is erroneous. This is notwithstanding the
counter-claim for damages in the counter protest. Public office is
personal to the incumbent and is not a property which passes to his
heirs. The heirs may no longer prosecute the deceased protestee’s
counter-claim for damages against the protestant for that was
extinguished when death terminated his right to occupy the
contested office.
Ombudsman vs Regalado
Facts: Respondent Regalado was a public employee, holding the
position of Immigration Officer I with the Bureau of Immigration. In
October 2006, Carmelita Doromal, the owner and administrator of
St. Martha’s Day Care Center and Tutorial Center, Inc. went to the
Davao Office of the BI to inquire about its letter requiring her school
to obtain accreditation to admit foreign students. She was told by
respondent that she needed to Pay Php50,000.00 as “processing
fee” for the accreditation.
After a series of exchanges through text messages, and other threats
that non-payment would result into their application being denied,
Doromal, Diaz, and admin officers of the school filed with the Office
of the Ombudsman for Mindanao a complaint against Regalado for
grave misconduct and violation of RA 6713 otherwise known as the
Code of Conduct and Ethical Standards for Public Officials and
Employees.
In her defense, Regalado denied ever extorting money from the
complainants, claiming that they were merely in league with
“people who had a grudge against her”. She admitted asking for the
said amount, but cited that there was a Memorandum Order that
stated that the amount was properly due from a school accredited
to admit foreign students, and that the amount may be lowered but
her statements were misconstrued. She further claimed that she
only really wanted to help St. Martha’s.
The Office of the Ombudsman for Mindanao dismissed Regalado
from the service. The CA affirmed in toto the ruling of the
Ombudsman, however citing that the Ombudsman failed to give
credence to affidavits executed by representatives of other schools
previously assisted by respondents, expressing their satisfaction
with her service. It was also added that this was the very first time
Regalado was found to be administratively liable. On account of the
mitigating circumstances it noted, the CA modified Regalado’s
penalty to only a suspension of one year without pay. It also added
that Regaladao had effectively served the entire duration of her
suspension, thereby entitling her to reinstatement.
Issue: WON the CA erred in setting aside the original penalty of
dismissal from service.
Held: YES. The 1987 Constitution spells out the basic ethos
underlying public office:
Section 1. Public office is a public trust. Public officers
and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.
The fundamental notion that one’s tenure in government springs
exclusively from the trust reposed by the public means that
continuance in office is contingent upon the extent to which one is
able to maintain that trust. In the concurrence of Justice Fernando
in the case of Pineda vs Claudio, he stated that:
We must keep in mind that the Article on the Civil Service,
like other provisions of the Constitution was inserted primarily to
assure a government, both efficient and adequate to fulfill the ends
for which it has been established. That is a truism, It is not subject to
dispute. It is in that sense that a public office is considered a public
trust.
Everyone in the public service cannot and must not lose
sight of that fact. While his right as an individual although employed
by the government is not to be arbitrarily disregarded, he cannot and
should not remain unaware that the only justification for his
continuance in such service is his ability to contribute to the public
welfare.
No one has a vested right to public office. One can continue to hold
public office only for as long as he/she proves worthy of public
trust.
It is equally without question that respondent engaged in
misconduct that was tainted with corruption and with willful intent
to violate the law and to disregard established rules. The act of
requesting pecuniary or material benefits is specifically listed by by
Section 3(c) of RA 3019 as a “corrupt practice”. Further, there is
certainly nothing in the records to suggest that respondent’s actions
were not products of her own volition.
It is clear, then, that respondent’s actions deserve the supreme
penalty of dismissal from service. The CA was in serious error in
holding that certain circumstances warrant the reduction of
respondent’s penalty to only a year-long suspension.
The fact that an offender was caught for the first time does not, in
any way, abate the gravity of what he or she actually committed.
Grave misconduct is not a question of frequency, but, as its own
name suggests, of gravity or weight. One who commits grave
misconduct is one who, by the mere fact of that misconduct, has
proven himself or herself to be unworthy of the continuing
confidence of the public. By his or her very commission of that
grave offense, the offender forfeits any right to hold public office.
Menoza vs Laxina
Facts: When Respondent Laxina took his oath of office as
Punong Barangay, a protest was subsequently filed by his rival
candidate, Fermo, which was favorablygranted causing him to
vacate his office in favor of Fermo. Respondent then filed petition
which was granted in his favor.Petitioner Mendoza and other
Kagawads questioned the validity of theofficial acts discharged by
respondent, which includes appropriation of salaries,immediately
after re-assumption but prior to re-taking of his oath of office.
Issue: Whether or not the re-taking of oath of office is condition
sine qua non before a proclaimed but subsequently unseated local
elective official can performduties with valid effects.
Held: No. While it is true that oath of office is a prerequisite to
full investiturewith the office, the re-taking thereof is not a
condition sine qua non to the validityof re-assumption.In the case at
bar, when Laxina first took his oath of office, it operated as afull
investiture on him of the rights of the office. The re-taking is only a
mereformality. Therefore, the appropriation for salaries of
petitioners was valid.
Ombudsman vs Jurado
Facts: Jurado was charged with violation of the Tariff and
Customs Code for falsification of public documentwith the Office of
the Ombudsman (OMB). An administrative complaint was also filed
against Jurado, wherebythe OMB penalized Jurado with suspension
for six months without pay.Jurado appealed to the CA. He
avers that his right to a speedy disposition of his case
had beenviolated and thus the administrative proceeding
before the OMB should be declared void. The CA decided infavor
of Jurado and set aside the decision of the OMB. Now, the OMB
comes before the SC arguing that therehas been no violation of
Jurado’s right to a speedy disposition of his case. Hence this petition.
Issue: Whether Jurado’s right to speedy disposition of his case
has been violated
Held: No. There is a violation of the right to speedy disposition
of cases when the proceedings are attendedby vexatious,
capricious, and oppressive delays; or when unjustified
postponements of the trial are asked forand secured, or when
without cause or justifiable motive a long period of time is
allowed to elapse withoutthe party having his case tried.T h e
time it took the Ombudsman to complete the
i nv e s t i g a t i o n c a n h a r d l y b e c o ns i d e r e d a nunreasonable
and arbitrary delay as to deprive respondent of his constitutional
right. There is nothing in therecords to show that said period was
characterized by delay which was vexatious, capricious or
oppressive.There was no inordinate delay amounting to a violation
of respondent’s constitutional rights.
Joson vs Ombudsman
Facts: Petitioner Edward Thomas F. Jason filed before the
Ombudsman charging the respondents Gov. Umali, Provincial
Administrator Alejandro, Consultant Atty. Abesamis, Provincial
Treasurer Pancho, and Officer-in Charge Roxas of the Office of the
Provincial Accountant, all of the Province of Nueva Ecija, with the
criminal offenses of Violation of Section 3(e) of Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, and Unlawful Appointment.
The filing of the above charges stemmed from the alleged
appointment of Ferdinand as Consultant - Technical Assistance in
the Office of the Governor of Nueva Ecija.
It was alleged that on July 2, 2007, the Province of Nueva Ecija,
represented by Governor Umali, entered into a contract of
consultancy with Ferdinand wherein the latter was appointed or
employed as Consultant - Technical Assistance in the Office of the
Governor.
On February 28, 2008, Governor Umali and Ferdinand entered into
another contract of consultancy on February 28, 2008 despite his
knowledge of the latter’s disqualification for appointment or re-
employment in any government position. He claimed that
Ferdinand was dismissed from the service as Senior State
Prosecutor of the Department of Justice for "conduct prejudicial to
the best interest of the service" and that such penalty of dismissal
carried with it his perpetual disqualification for re-employment in
the government service. Joson added that for the same reason as
above, the twin contracts of consultancy were likewise invalid and
unlawful.
Joson also contended that the appointment of Ferdinand as
consultant by Governor Umali in spite of being disqualified to hold
public office, and the payment of his monthly honorarium from the
coffers of the provincial government by the other respondents,
were done with manifest partiality, evident bad faith or gross
inexcusable negligence, giving unwarranted benefit to Ferdinand
and causing great and irreparable damage and prejudice to the
taxpayers of the Province of Nueva Ecija.
In his Counter-Affidavit,5 Governor Umali responded that the legal
arguments advanced by Joson in his affidavit-complaint were fatally
defective and had no basis in fact and in law. He averred that the
consultancy services rendered by Ferdinand could not be
considered as government service within the contemplation of law
and, hence, not governed by the Civil Service Law, Rules and
Regulations. He pointed out that under the twin contracts of
consultancy, Ferdinand had been engaged to render lump sum
consultancy services for a short duration of six (6) months on a
daily basis and had not been paid any salary or given any benefits
enjoyed by government employees such as PERA, COLA and RATA,
but merely paid honoraria as stipulated in the contracts.
Governor Umali argued that if Ferdinand was indeed appointed or
reemployed by the provincial government, as erroneously
perceived by Joson, then there would be no need for him to execute
the second consultancy contract which was merely a renewal of his
previous contract of July 2, 2007. He submitted that the consultancy
contracts were mere agreements to render service and could not in
themselves create public office to which the Revised Omnibus Rules
on Appointments and other Personnel Actions would apply. To
bolster his claim, Governor Umali cited the Department of Interior
and Local Government (DILG) Opinion No. 72 series of 2004, dated
August 23, 20046 and DILG Opinion No. 100 series of 2004, dated
October 14, 2004,7 wherein then DILG Secretary Angelo T. Reyes
opined that a consultancy service was not covered by the phrase
"any office in the government."
Ferdinand, on the other hand, posited in his Counter-Affidavit,
dated June 16, 2008, that although his dismissal from government
service was not yet final as his motion for reconsideration had not
yet been resolved by the Office of the President at the time of his
appointment, there was no way that his service contract with the
Provincial Government of Nueva Ecija could be construed as to
create a public office. He alleged that his engagements squarely fell
within the ambit of contracts of service/job orders under Section
2(a), Rule XI of the Civil Service Commission Circular No. 40 series
of 1998. He insisted that he was not a government employee and
the specifics of his contracts were governed by the Commission on
Audit (COA).
The Office of the Ombudsman issued a joint resolution dismissing
the criminal and administrative complaints against all the
respondents for lack of evidence and for lack of merit.
Undaunted, Joson went directly to the SC via a certiorari petition
ascribing grave abuse of discretion on the part of the Ombudsman
in dismissing the criminal charges for lack of probable cause and
the administrative charges for lack of merit. Joson raised the
following
Issue: WON consultancy service is government service.
Held: NO. The Ombudsman dismissed the petitioner’s
complaint for lack of probable cause based on its appreciation and
review of the evidence presented. In the Joint Resolution, dated
September 8, 2011, the Ombudsman stated that Ferdinand was not
appointed to a public office through the contracts of consultancy
because of the following factors:
1. The rights, authority and duties of Ferdinand arose from contract,
not law;
2. Ferdinand was not vested with a portion of the sovereign
authority;
3. The consultancy contracts were for a limited duration, as the
same were valid for only six (6) months each and could be
terminated by a mere written notice given five (5) days prior;
4. Ferdinand did not enjoy the benefits given to government
employees such as PERA, COLA and RATA, but only received
honoraria for consultancy services actually rendered; and
5. The Revised Omnibus Rules on Appointments and other
Personnel Actions recognize that service contracts like the subject
twin contracts of consultancy were not considered government
service.
The Ombudsman concluded that there could be no legal basis to
support a finding that Governor Umali violated Article 244 of the
RPC considering that Ferdinand was not appointed to a government
office; and that, there could be no finding that the respondents
violated R.A. No. 3019 considering that the alleged irregularity in
the engagements of Ferdinand was not shown by substantial
evidence.
In Posadas v. Sandiganbayan,18 the Court stated that a consultancy
service is not considered government service.
Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, a
contract for consultancy services is not covered by Civil Service
Law, rules and regulations because the said position is not found in
the index of position titles approved by DBM. Accordingly, it does
not need the approval of the CSC. xxx A "consultant" is defined as
one who provides professional advice on matters within the field of
his specific knowledge or training. There is no employer-employee
relationship in the engagement of a consultant but that of client-
professional relationship.19
[Emphases Supplied]
The Court notes that Ferdinand did not take an oath of office prior
to his rendition of consultancy services for the Provincial
Government of Nueva Ecija. All public officers and employees from
the highest to the lowest rank are required to take an oath of office
which marks their assumption to duty. It is well-settled that on oath
of office is a qualifying requirement for public office, a prerequisite
to the full investiture of the office.20 Ferdinand was not required to
take an oath of office because he rendered consultancy services for
the provincial government not by virtue of an appointment or
election to a specific public office or position but by a contractual
engagement. In fine, those who have rendered services with the
government, without occupying a public office or without having
been elected or appointed as a public officer evidenced by a written
appointment and recorded with the Civil Service Commission, did
so outside the concept of government service.
Although in its September 23, 2013 Joint Order, the Ombudsman
stated that the engagement of Ferdinand as consultant "comes
within the purview of the term ‘public office’ and therefore, his
dismissal from the service disqualifies him from being hired as such
xxx,"21 it opined, and so held, that the private respondents could
not be held criminally liable for violation of Section 3(e) of R.A. No.
3019 because the two elements of the offense are wanting.
According to the Ombudsman, there was no undue injury
amounting to actual damages to the government as it was not
disputed that Ferdinand performed the tasks and duties required of
him under the questioned contracts and, thus, the payment of
honoraria to him was in order and did not cause damage to or
result in prejudice to the provincial government. The Ombudsman
was also of the opinion that the private respondents did not act
with manifest partiality, evident bad faith or gross inexcusable
negligence in entering into the consultancy contracts with
Ferdinand because Governor Umali relied on the issuances of the
Civil Service Commission and the opinions of the DILG and the
Provincial Legal Office in good faith before proceeding to engage
Ferdinand.
Moreover, the Ombudsman stated that Governor Umali could not be
held liable for violation of Article 244 of the RPC for unlawful
appointment explaining in this wise:
Umali believed in good faith that Ferdinand’s dismissal from the
service did not disqualify him from being hired as a consultant,
hence, Art. 244 cannot apply since to commit the crime, one must
knowingly appoint the disqualified person. The term "knowingly"
presupposes that the public officer knows of the disqualification
and despite such, he appointed said person.22
Verily, the foregoing sufficiently shows that the Ombudsman did
not commit grave abuse of discretion in dismissing the criminal
charges against the private respondents. As defined by this Court in
United Coconut Planters Bank v. Looyuko:23
Pimentel vs Ermita
Facts: While Congress was in session, due to vacancies in the
cabinet, then president Gloria Macapagal-Arroyo (GMA) appointed
Arthur Yap et al as secretaries of their respective departments.
They were appointed in an acting capacity only. Senator Aquilino
Pimentel together with 7 other senators filed a complaint against
the appointment of Yap et al. Pimentel averred that GMA cannot
make such appointment without the consent of the Commission on
Appointment; that, in accordance with Section 10, Chapter 2, Book
IV of Executive Order No. 292, only the undersecretary of the
respective departments should be designated in an acting capacity
and not anyone else.
On the contrary, then Executive Secretary Eduardo Ermita averred
that the president is empowered by Section 16, Article VII of the
1987 Constitution to issue appointments in an acting capacity to
department secretaries without the consent of the Commission on
Appointments even while Congress is in session. Further, EO 292
itself allows the president to issue temporary designation to an
officer in the civil service provided that the temporary designation
shall not exceed one year.
During the pendency of said case, Congress adjourned and GMA
issued ad interim appointments re-appointing those previously
appointed in acting capacity.
Issue: WON the appointments made by ex PGMA is valid.
Held: Yes. The argument raised by Ermita is correct. Further,
EO 292 itself provided the safeguard so that such power will not be
abused hence the provision that the temporary designation shall
not exceed one year. In this case, in less than a year after the initial
appointments made by GMA, and when the Congress was in recess,
GMA issued the ad interim appointments – this also proves that the
president was in good faith.
It must also be noted that cabinet secretaries are the alter egos of
the president. The choice is the president’s to make and the
president normally appoints those whom he/she can trust. She
cannot be constrained to choose the undersecretary. She has the
option to choose. An alter ego, whether temporary or permanent,
holds a position of great trust and confidence. Congress, in the guise
of prescribing qualifications to an office, cannot impose on the
President who her alter ego should be.
The office of a department secretary may become vacant while
Congress is in session. Since a department secretary is the alter ego
of the President, the acting appointee to the office must necessarily
have the President’s confidence. That person may or may not be the
permanent appointee, but practical reasons may make it expedient
that the acting appointee will also be the permanent appointee.
Anent the issue that GMA appointed “outsiders”, such is allowed. EO
292 also provides that the president “may temporarily designate an
officer already in the government service or any other competent
person to perform the functions of an office in the executive
branch.” Thus, the President may even appoint in an acting capacity
a person not yet in the government service, as long as the President
deems that person competent.
Albania vs COMELEC
Facts: In the May 14, 2007 National and Local Elections,
respondent Edgardo A. Tallado and Jesus O. Typoco were both
candidates for the position of Governor in Camarines Norte. After
the counting and canvassing of votes, Typoco was proclaimed as the
winner. Respondent questioned Typoco's proclamation by filing
with the COMELEC, a petition for correction of a manifest error. The
Petition was decided in respondent's favor on March 5, 2010 and
the latter assumed the position of Governor of Camarines Norte
from March 22, 2010 to June 30, 2010, the end of the 2007-2010
term.
Respondent ran again in the 2010 and 2013 National and Local
Elections where he won and served as Governor of Camarines
Norte, respectively. On October 16, 2015, respondent filed his
Certificate of Candidacy as Governor of Camarines Norte in the May
9, 2016 National and Local elections. On November 13, 2015,
petitioner, a registered voter of Poblacion Sta. Elena, Camarines
Norte, filed a petition for respondent's disqualification from
running as Governor based on Rule 25 of COMELEC Resolution No.
9523 on two grounds: (1) he violated the three term limit rule
under Section 43 of RA No 7160, otherwise known as the Local
Government Code of 1991 (LGC); and (2) respondent's suspension
froni office for one year without pay, together with its accessory
penalties, after he was found guilty of oppression and grave abuse
of authority in the Ombudsman's Order9 dated October 2, 2015.
Respondent argued that since the petition was primarily based on
his alleged violation of the three-term limit rule, the same should
have been filed as a petition to deny due course to or cancel
certificate of candidacy under Rule 23 of COMELEC Resolution
9523, in relation to Section 78 of the Omnibus Election Code, as the
ground cited affected a candidate's eligibility; that based on Section
23, the petition should had been filed on November 10, 2015, but
the petition was filed only on November 13, 2015, hence, the same
had already prescribed and must be dismissed. His suspension from
office is also not a ground for a petition for disqualification. On the
substantive issues, he denied violating the three-term limit rule as
he did not fully serve three consecutive terms since he only served
as Governor for the 2007 elections from March 22, 2010 to June 30,
2010.
On April 22, 2016, the COMELEC Second Division dismissed the
petition for being filed out of time. It ruled that a violation of the
three-term limit rule and suspension from office as a result of an
administrative case are not grounds for disqualification of a
candidate under the law.
Petitioner filed a motion for reconsideration with the COMELEC En
Banc, which dismissed the same in a Resolution dated August 24,
2016. The COMELEC En Banc echoed the Division's findings that the
grounds relied upon by petitioner are not proper for a petition for
disqualification but one for denial of due course to or cancellation of
respondent's COC, which was filed out of time. It then continued to
rule on the merits finding that respondent did not serve the full
2007-2010 term as Governor of Camarines Norte, thus, cannot be
considered as one term for purposes of counting the three-term
threshold.
Issue: WON respondent Edgardo A. Tallado violated the three
term limit rule under Section 43 of RA No 7160, otherwise known
as the Local Government Code of 1991.
Held: NO. The respondent Edgardo A. Tallado did not violate
the three term limit rule under Section 43 of RA No 7160, otherwise
known as the Local Government Code of 1991 .The Court noted the
grounds for disqualification of a candidate are found under Sections
12 and 68 of Batas Pambansa Blg. 881, as amended, otherwise
known as the Omnibus Election Code of the Philippines, as well as
Section 40 of the Local Government Code, which respectively
provide: SEC. 12. Disqualifications. Any person who has been
declared by competent authority insane or incompetent, or has
been sentenced by final judgment for subversion, insurrection,
rebellion, or for any offense for which he has been sentenced to a
penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold
any office, unless he has been given plenary pardon or granted
amnesty. x x x x SEC. 68. Disqualifications. Any candidate who, in an
action or protest in which he is a party is declared by final decision
of a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89,
95, 96, 97 and 104;
x x x x SECTION 40. Disqualifications - The following persons are
disqualified from running for any elective local position:
(a) Those sentence by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
A reading of the grounds enumerated under the above-quoted
provisions for a candidate's disqualification does not include the
two grounds relied upon by petitioner. Hence, the petition is
DENIED. The Resolution dated August 24, 2016 of the Commission
on Elections En Banc is AFFIRMED.
Abundo vs COMELEC
Facts: For four (4) successive regular elections, namely, the
2001, 2004, 2007 and 2010 national and local elections, Abundo
vied for the position of municipal mayor of Viga, Catanduanes. In
both the 2001 and 2007 runs, he emerged and was proclaimed as
the winning mayoralty candidate and accordingly served the
corresponding terms as mayor. In the 2004 electoral derby,
however, the Viga municipal board of canvassers initially
proclaimed as winner one Jose Torres (Torres), who, in due time,
performed the functions of the office of mayor. Abundo protested
Torres’ election and proclamation. Abundo was eventually declared
the winner of the 2004 mayoralty electoral contest, paving the way
for his assumption of office starting May 9, 2006 until the end of the
2004-2007 term on June 30, 2007, or for a period of a little over one
year and one month.
Then came the May 10, 2010 elections where Abundo and Torres
again opposed each other. When Abundo filed his certificate of
candidacy for the mayoralty seat relative to this electoral contest,
Torres lost no time in seeking the former’s disqualification to run,
the corresponding petition, docketed as SPA Case No. 10-128 (DC),
predicated on the three-consecutive term limit rule. On June 16,
2010, the COMELEC First Division issued a Resolution5 finding for
Abundo, who in the meantime bested Torres by 219 votes6 and was
accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve
the adverted disqualification case Torres initiated against Abundo,
herein private respondent Ernesto R. Vega (Vega) commenced a
quo warranto7 action before the RTC-Br. 43 in Virac, Catanduanes,
docketed as Election Case No. 55, to unseat Abundo on essentially
the same grounds Torres raised in his petition to disqualify.
The RTC declared petitioner ineligible to serve as municipal mayor,
holding that Abundo had been declared winner in the aforesaid
2004 elections consequent to his protest and occupied the position
of and actually served as Viga mayor for over a year of the remaning
term, i.e., from May 9, 2006 to June 30, 2007. According to the lower
court, the year and a month of service constitutes a complete and
full service of Abundo’s second term as mayor.
The COMELEC affirmed the RTC’s ruling. During this time, Vega had
received the Court’s July 3, 2012 Resolution and a copy of the TRO.
On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor
Cesar O. Cervantes took their oaths of office as mayor and vice-
mayor of Viga, Catanduanes, respectively.
It is upon the foregoing backdrop of events that Abundo was
dislodged from his post as incumbent mayor of Viga, Catanduanes.
To be sure, the speed which characterized Abundo’s ouster despite
the supervening issuance by the Court of a TRO on July 3, 2012 is
not lost on the Court. While it is not clear whether Vice-Mayor Tarin
and First Councilor Cervantes knew of or put on notice about the
TRO either before they took their oaths of office on July 4, 2012 or
before assuming the posts of mayor and vice-mayor on July 5, 2012,
the confluence of events following the issuance of the assailed
COMELEC en banc irresistibly tends to show that the TRO––issued
as it were to maintain the status quo, thus averting the premature
ouster of Abundo pending this Court’s resolution of his appeal––
appears to have been trivialized.
Issue: WON Abundo is deemed to have served three
consecutive terms.
Held: NO. The consecutiveness of what otherwise would have
been Abundo’s three successive, continuous mayorship was
effectively broken during the 2004-2007 term when he was initially
deprived of title to, and was veritably disallowed to serve and
occupy, an office to which he, after due proceedings, was eventually
declared to have been the rightful choice of the electorate.
The three-term limit rule for elective local officials, a
disqualification rule, is found in Section 8, Article X of the 1987
Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected. (Emphasis supplied.)
and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the
Local Government Code (LGC) of 1991, thusly:
Sec. 43. Term of Office. — x x x x(b) No local elective official shall
serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned
was elected. (Emphasis Ours.)
To constitute a disqualification to run for an elective local office
pursuant to the aforequoted constitutional and statutory
provisions, the following requisites must concur:
Held: NO. The preventive suspension of public officials does
not interrupt their term for purposes of the three-term limit rule
under the Constitution and the Local Government Code (RA 7160).
The candidacy of Lucena City Councilor Wilfredo F. Asilo for a
fourth term in the 2007 elections was in contravention of the three-
term limit rule of Art. X, sec. 8 of the Constitution since his 2004-
2007 term was not interrupted by the preventive suspension
imposed on him, the SC granted the petition of Simon B. Aldovino,
Danilo B. Faller, and Ferdinand N. Talabong seeking Asilo’s
disqualification.

(1) that the official concerned has been elected for three
consecutive terms in the same local government post; and
(2) that he has fully served three consecutive terms.
Judging from extant jurisprudence, the three-term limit rule, as
applied to the different factual milieus, has its complicated side. We
shall revisit and analyze the various holdings and relevant
pronouncements of the Court on the matter.
“Preventive suspension, by its nature, does not involve an effective
interruption of service within a term and should therefore not be a
reason to avoid the three-term limitation,” held the Court. It noted
that preventive suspension can pose as a threat “more potent” than
the voluntary renunciation that the Constitution itself disallows to
evade the three-term limit as it is easier to undertake and merely
requires an easily fabricated administrative charge that can be
dismissed soon after a preventive suspension has been imposed.

In the present case, the Court finds Abundo’s case meritorious and
declares that the two-year period during which his opponent,
Torres, was serving as mayor should be considered as an
interruption, which effectively removed Abundo’s case from the
ambit of the three-term limit rule.

It bears to stress at this juncture that Abundo, for the 2004 election
for the term starting July 1, 2004 to June 30, 2007, was the duly
elected mayor. Otherwise how explain his victory in his election
protest against Torres and his consequent proclamation as duly
elected mayor. Accordingly, the first requisite for the application of
the disqualification rule based on the three-term limit that the
official has been elected is satisfied.

This thus brings us to the second requisite of whether or not

Abundo had served for "three consecutive terms," as the phrase is
juridically understood, as mayor of Viga, Catanduanes immediately
before the 2010 national and local elections. Subsumed to this issue
is of course the question of whether or not there was an effective
involuntary interruption during the three three-year periods,
resulting in the disruption of the continuity of Abundo’s mayoralty.
The facts of the case clearly point to an involuntary interruption
during the July 2004-June 2007 term.

There can be no quibbling that, during the term 2004-2007, and

with the enforcement of the decision of the election protest in his
favor, Abundo assumed the mayoralty post only on May 9, 2006 and
served the term until June 30, 2007 or for a period of a little over
one year and one month. Consequently, unlike Mayor Ong in Ong
and Mayor Morales in Rivera, it cannot be said that Mayor Abundo
was able to serve fully the entire 2004-2007 term to which he was
otherwise entitled.

Aldovino vs COMELEC

Facts: Lucena City councilor Wilfredo F. Asilo was elected to the

said office for three consecutive terms: 1998-2001, 2001-2004, and
2004-2007. In September 2005, during his third term of office, the
Sandiganbayan issued an order of 90-day preventive suspension
against him in relation to a criminal case. The said suspension order
was subsequently lifted by the Court, and Asilo resumed the
performance of the functions of his office.

Asilo then filed his certificate of candidacy for the same position in
2007. His disqualification was sought by herein petitioners on the
ground that he had been elected and had served for three
consecutive terms, in violation of the three-term Constitutional
limit.

Issue: WON the suspensive condition interrupts the three-term

limitation rule of COMELEC?