THIRD DIVISION strictness as to carefully safeguard the rights of the defendant . . .
s as to carefully safeguard the rights of the defendant . . ." The language of the foregoing provision is clear. A
G.R. No. 116033 February 26, 1997
ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C.
BATAUSA, respondents.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; CANNOT BE PRESUMED OR IMPLIED. — It is hornbook doctrine that in order
(to) ascertain whether a court has jurisdiction or not, the provisions of the law should be inquired into." Furthermore, "the
jurisdiction of the court must appear clearly from the statute law or it will not be held to exist. It cannot be presumed or
implied. And for this purpose in criminal cases, "the jurisdiction of a court is determined by the law at the time of
commencement of the action."
2. ID.; ID.; SANDIGANBAYAN; SEC. 4, P.D. NO. 1606 SPECIFY THE ONLY INSTANCES WHEN THE
SANDIGANBAYAN WILL HAVE JURISDICTION OVER PRIVATE INDIVIDUAL. — The provisions of Sec. 4 of P.D. No.
1606 unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a private individual,
i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer
or employee who has been charged with a crime within its jurisdiction.
3. CRIMINAL LAW; PUBLIC OFFICER, DEFINED. — Article 203 of the Revised Penal Code determines who are public
officers: "Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of the
book, 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,
shall be deemed to be a public officer." Thus," (to) be a public officer, one must be — (1) Taking part in the performance
of public functions in the government, or Performing in said Government or any of its branches public duties as an
employee, agent, or subordinate official, of any rank or class; and (2) That his authority to take part in the performance of
public functions or to perform public duties must be — a. by direct provision of the law, or b. by popular election, or c. by
appointment by competent authority."
4. CONSTITUTIONAL LAW; DELEGATED POWERS; ADMINISTRATIVE AGENCIES MAY EXERCISE ONLY THOSE
PROVIDED BY ITS ENABLING ACT. — It is axiomatic in our constitutional framework, which mandates a limited
government, that its branches and administrative agencies exercise only that power delegated to them as "defined either
in the Constitution or in legislation or in both." Thus, although the "appointing power is the exclusive prerogative of the
President, . . ." the quantum of powers possessed by an administrative agency forming part of the executive branch will
still be limited to that "conferred expressly or by necessary or fair implication" in its enabling act. Hence," (a)n
administrative officer, it has been held, has only such powers as are expressly granted to him and those necessarily
implied in the exercise thereof." Corollarily, implied powers "are those which are necessarily included in, and are
therefore of lesser degree than the power granted. It cannot extend to other matters not embraced therein, nor are not
incidental thereto." For to so extend the statutory grant of power "would be an encroachment on powers expressly lodged
in Congress by our Constitution."
5. ID.; ID.; ID.; NATIONAL INTERNAL REVENUE CODE; DOES NOT STRETCH THE BIR’S POWER AUTHORIZING A
PRIVATE INDIVIDUAL TO ACT AS A DEPOSITARY AS TO INCLUDE THE POWER TO APPOINT HIM AS PUBLIC
OFFICER. — It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a
constructive distraint by requiring "any person" to preserve a distrained property, thus: ". . . The constructive distraint of
personal property shall be effected by requiring the taxpayer or any person having possession or control of such property
to sign a receipt covering the property distrained and obligate himself to preserve the same intact and unaltered and not
to dispose of the same in any manner whatever without the express authority of the Commissioner. . . However, we find
no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIR’s power
authorizing a private individual to act as a DEPOSITARY cannot be stretched to include the power to appoint him as a
public officer.
6. STATUTORY CONSTRUCTION; LEGISLATIVE INTENT; DETERMINED PRINCIPALLY FROM THE LANGUAGE OF
THE STATUTE; APPLICATION IN CASE AT BAR. — Legislative intent is determined principally from the language of a
statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead
to an injustice. This is particularly observed in the interpretation of penal statutes which "must be construed with such
private individual who has in his charge any of the public funds or property enumerated therein and commits any of the
acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the
same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied that a private individual
falling under said Article 222 is to be deemed a public officer.
PANGANIBAN, J.:
Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of public funds as a
principal after the said individual had been designated by the Bureau of Internal Revenue as a custodian of distrained
property? Did such accused become a public officer and therefore subject to the graft court's jurisdiction as a
consequence of such designation by the BIR?
These are the main questions in the instant petition for review of Respondent Sandiganbayan's Decision 1 in Criminal
Case No. 14260 promulgated on March 8, 1994, convicting petitioner of malversation of public funds and property, and
Resolution 2 dated June 20, 1994, denying his motion for new trial or reconsideration thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt and ore." 3 His services were
contracted by the Paper Industries Corporation of the Philippines (PICOP) at its concession in Mangagoy, Surigao del
Sur. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the former's
premises. 4 From this set of circumstances arose the present controversy.
. . . It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was issued by the
Main Office of the Bureau of Internal Revenue (BIR) addressed to the Regional Director (Jose
Batausa) or his authorized representative of Revenue Region 10, Butuan City commanding the latter
to distraint the goods, chattels or effects and other personal property of Jaime Ancla, a sub-
contractor of accused Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued
to accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the
property in his possession owned by taxpayer Ancla. The Warrant of Garnishment was received by
accused Azarcon on June 17, 1985. 5
Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under Authority of the National
Internal Revenue," assumed the undertakings specified in the receipt the contents of which are reproduced as follows:
(I), the undersigned, hereby acknowledge to have received from Amadeo V. San Diego, an Internal
Revenue Officer, Bureau of Internal Revenue of the Philippines, the following described goods,
articles, and things:
Kind of property — Isuzu dump truck
Motor number — E120-229598
Chassis No. — SPZU50-1772440
Number of CXL — 6
Color — Blue
Owned By — Mr. Jaime Ancla
the same having been this day seized and left in (my) possession pending investigation by the
Commissioner of Internal Revenue or his duly authorized representative. (I) further promise that (I)
will faithfully keep, preserve, and, to the best of (my) ability, protect said goods, articles, and things
seized from defacement, demarcation, leakage, loss, or destruction in any manner; that (I) will
neither alter nor remove, nor permit others to alter or remove or dispose of the same in any manner
without the express authority of the Commissioner of Internal Revenue; and that (I) will produce and
deliver all of said goods, articles, and things upon the order of any court of the Philippines, or upon
 demand of the Commissioner of Internal Revenue or any authorized officer or agent of the Bureau of
Internal Revenue. 6
Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR's Regional Director for Revenue
Region 10 B, Butuan City stating that
. . . while I have made representations to retain possession of the property and signed a receipt of
the same, it appears now that Mr. Jaime Ancla intends to cease his operations with us. This is
evidenced by the fact that sometime in August, 1985 he surreptitiously withdrew his equipment from
my custody. . . . In this connection, may I therefore formally inform you that it is my desire to
immediately relinquish whatever responsibilities I have over the above-mentioned property by virtue
of the receipt I have signed. This cancellation shall take effect immediately. . . . 7
Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP, Mr. Delfin Panelo,
and requested him to prevent this truck from being taken out of the PICOP concession. By the time the order
to bar the truck's exit was given, however, it was too late. 8
Regional Director Batausa responded in a letter dated May 27, 1986, to wit:
An analysis of the documents executed by you reveals that while you are (sic) in possession of the
dump truck owned by JAIME ANCLA, you voluntarily assumed the liabilities of safekeeping and
preserving the unit in behalf of the Bureau of Internal Revenue. This is clearly indicated in the
provisions of the Warrant of Garnishment which you have signed, obliged and committed to
surrender and transfer to this office. Your failure therefore, to observe said provisions does not
relieve you of your responsibility. 9
Thereafter, the Sandiganbayan found that
On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue Region 10 B,
Butuan City, sent a progress report to the Chief of the Collection Branch of the surreptitious taking of
the dump truck and that Ancla was renting out the truck to a certain contractor by the name of Oscar
Cueva at PICOP (Paper Industries Corporation of the Philippines, the same company which
engaged petitioner's earth moving services), Mangagoy, Surigao del Sur. She also suggested that if
the report were true, a warrant of garnishment be reissued against Mr. Cueva for whatever amount
of rental is due from Ancla until such time as the latter's tax liabilities shall be deemed satisfied. . .
However, instead of doing so, Director Batausa filed a letter-complaint against the (herein Petitioner)
and Ancla on 22 January 1988, or after more than one year had elapsed from the time of Mrs. Calo's
report. 10
Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to the Office of the Tanodbayan" on
May 18, 1988. He was deputized Tanodbayan prosecutor and granted authority to conduct preliminary investigation on
August 22, 1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado
Vasquez. 11
Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the Sandiganbayan with the crime of
malversation of public funds or property under Article 217 in relation to Article 222 of the Revised Penal Code (RPC) in
the following Information 12 filed on January 12, 1990, by Special Prosecution Officer Victor Pascual:
That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo L. Azarcon, a private
individual but who, in his capacity as depository/administrator of property seized or deposited by the
Bureau of Internal Revenue, having voluntarily offered himself to act as custodian of one Isuzu
Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6 and
was authorized to be such under the authority of the Bureau of Internal Revenue, has become a
responsible and accountable officer and said motor vehicle having been seized from Jaime C. Ancla
in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY
ONE PESOS and 59/100 (P80,831.59) became a public property and the value thereof as public
fund, with grave abuse of confidence and conspiring and confederating with said Jaime C. Ancla,
likewise, a private individual, did then and there wilfully, (sic) unlawfully and feloniously
misappropriate, misapply and convert to his personal use and benefit the aforementioned motor
vehicle or the value thereof in the aforestated amount, by then and there allowing accused Jaime C.
Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority,
consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage and
prejudice of the government in the amount of P80,831.59 in a form of unsatisfied tax liability.
CONTRARY TO LAW.
The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging that: (1) the
petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public officer, hence a doubt
exists as to why he was being charged with malversation under Article 217 of the Revised Penal Code. 13The
Sandiganbayan granted the motion for reinvestigation on May 22, 1991. 14 After the reinvestigation, Special Prosecution
Officer Roger Berbano, Sr., recommended the "withdrawal of the information" 15 but was "overruled by the
Ombudsman." 16
A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the Sandiganbayan did not have
jurisdiction over the person of the petitioner since he was not a public officer. 17 On May 18, 1992; the Sandiganbayan
denied the motion. 18
When the prosecution finished presenting its evidence, the petitioner then filed a motion for leave to file demurrer to
evidence which was denied on November 16, 1992, "for being without merit." 19 The petitioner then commenced and
finished presenting his evidence on February 15, 1993.
The Respondent Court's Decision
On March 8, 1994, Respondent Sandiganbayan 20 rendered a Decision, 21 the dispositive portion of which reads:
WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond reasonable doubt
as principal of Malversation of Public Funds defined and penalized under Article 217 in relation to
Article 222 of the Revised Penal Code and, applying the Indeterminate Sentence Law, and in view of
the mitigating circumstance of voluntary surrender, the Court hereby sentences the accused to suffer
the penalty of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its
maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion
Temporal. To indemnify the Bureau of Internal Revenue the amount of P80,831.59; to pay a fine in
the same amount without subsidiary imprisonment in case of insolvency; to suffer special perpetual
disqualification; and, to pay the costs.
Considering that accused Jaime Ancla has not yet been brought within the jurisdiction of this Court
up to this date, let this case be archived as against him without prejudice to its revival in the event of
his arrest or voluntary submission to the jurisdiction of this Court.
SO ORDERED.
Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration on March 23, 1994, which was denied
by the Sandiganbayan in its Resolution 23 dated December 2, 1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the reversal of the Sandiganbayan's assailed Decision and Resolution: Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:

I. The Sandiganbayan does not have jurisdiction over crimes committed solely
by private individuals.
II. In any event, even assuming arguendo that the appointment of a private
individual as a custodian or a depositary of distrained property is sufficient to
convert such individual into a public officer, the petitioner cannot still be
considered a public officer because:
[A]
There is no provision in the National Internal Revenue Code which authorizes
the Bureau of Internal Revenue to constitute private individuals as depositaries
of distrained properties.
[B]
His appointment as a depositary was not by virtue of a direct provision of law, or
by election or by appointment by a competent authority.
III. No proof was presented during trial to prove that the distrained vehicle was
actually owned by the accused Jaime Ancla; consequently, the government's
right to the subject property has not been established.
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in
relation to their office, including those employed in government-owned or
controlled corporations, whether simple or complexed with other crimes, where
the penalty prescribed by law is higher than prision correccional or
imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER,
that offenses or felonies mentioned in this paragraph where the penalty
prescribed by law does not exceed prision correccional or imprisonment for six
(6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.
xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or accessories with the public
officers or employees, including those employed in government-owned or controlled corporations,
they shall be tried jointly with said public officers and employees.
xxx xxx xxx

IV. The procedure provided for in the National Internal Revenue Code
The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a
concerning the disposition of distrained property was not followed by the B.I.R.,
private individual, i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory
hence the distraint of personal property belonging to Jaime C. Ancla and found
of a public officer or employee who has been charged with a crime within its jurisdiction.
allegedly to be in the possession of the petitioner is therefore invalid.

Azarcon: A Public Officer or A Private Individual?

V. The B.I.R. has only itself to blame for not promptly selling the distrained
property of accused Jaime C. Ancla in order to realize the amount of back taxes
owed by Jaime C. Ancla to the Bureau. 24 The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a public officer
committing an offense under the Sandiganbayan's jurisdiction. Thus, unless petitioner be proven a public officer, the
Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of the RPC determines who are public
In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject matter of the controversy.
officers:
Corollary to this is the question of whether petitioner can be considered a public officer by reason of his being designated
by the Bureau of Internal Revenue as a depositary of distrained property.
Who are public officers. — For the purpose of applying the provisions of this and the preceding titles
of the book, any person who, by direct provision of the law, popular election, popular election or
The Court's Ruling
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
The petition is meritorious. public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed
to be a public officer.
Jurisdiction of the Sandiganbayan
Thus,
It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction or not, the provisions of the law should
be inquired into." 25 Furthermore, "the jurisdiction of the court must appear clearly from the statute law or it will not be (to) be a public officer, one must be —
held to exist. It cannot be presumed or implied." 26 And for this purpose in criminal cases, "the jurisdiction of a court is
determined by the law at the time of commencement of the action." 27
(1) Taking part in the performance of public functions in the government, or

In this case, the action was instituted with the filing of this information on January 12, 1990; hence, the applicable
Performing in said Government or any of its branches public duties as an employee, agent, or
statutory provisions are those of P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but prior to their
subordinate official, of any rank or class; and
amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that:
 (2) That his authority to take part in the performance of public functions or to perform public duties
must be —
a. by direct provision of the law, or
b. by popular election, or
28
c. by appointment by competent authority.
Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the BIR, commenced
to take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election.
The next logical query is whether petitioner's designation by the BIR as a custodian of distrained property qualifies as
appointment by direct provision of law, or by competent authority. 29 We answer in the negative.
The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly owned by Jaime
Ancla, and in requiring Petitioner Alfredo Azarcon who was in possession thereof to sign a pro forma receipt for it,
effectively "designated" petitioner a depositary and, hence, citing U.S. vs. Rastrollo, 30 a public officer. 31 This is based on
the theory that
(t)he power to designate a private person who has actual possession of a distrained property as a
depository of distrained property is necessarily implied in the BIR's power to place the property of a
delinquent tax payer (sic) in distraint as provided for under Sections 206, 207 and 208 (formerly
Sections 303, 304 and 305) of the National Internal Revenue Code, (NIRC) . . . . 32
We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts therein are
not identical, similar or analogous to those obtaining here. While the cited case involved a judicial deposit of the
proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt with the BIR's administrative
act of effecting constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which
was received by Petitioner Azarcon. In the cited case, it was clearly within the scope of that court's jurisdiction and
judicial power to constitute the judicial deposit and give "the depositary a character equivalent to that of a public
official." 33 However, in the instant case, while the BIR had authority to require Petitioner Azarcon to sign a receipt for the
distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer.
It is axiomatic in our constitutional framework, which mandates a limited government, that its branches and administrative
agencies exercise only that power delegated to them as "defined either in the Constitution or in legislation or in
both." 34 Thus, although the "appointing power is the exclusive prerogative of the President, . . ." 35 the quantum of
powers possessed by an administrative agency forming part of the executive branch will still be limited to that "conferred
expressly or by necessary or fair implication" in its enabling act. Hence, "(a)n administrative officer, it has been held, has
only such powers as are expressly granted to him and those necessarily implied in the exercise thereof." 36Corollarily,
implied powers "are those which are necessarily included in, and are therefore of lesser degree than the power granted.
It cannot extend to other matters not embraced therein, nor are not incidental thereto." 37 For to so extend the statutory
grant of power "would be an encroachment on powers expressly lodged in Congress by our Constitution." 38 It is true that
Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive distraint by requiring
"any person" to preserve a distrained property, thus:
xxx xxx xxx
The constructive distraint of personal property shall be effected by requiring the taxpayer or any
person having possession or control of such property to sign a receipt covering the property
distrained and obligate himself to preserve the same intact and unaltered and not to dispose of the
same in any manner whatever without the express authority of the Commissioner.
xxx xxx xxx
However, we find no provision in the NIRC constituting such person a public officer by reason of such requirement. The
BIR's power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint
him as a public officer. The prosecution argues that "Article 222 of the Revised Penal Code . . . defines the individuals
covered by the term 'officers' under Article 217 39 . . ." of the same Code. 40 And accordingly, since Azarcon became "a
depository of the truck seized by the BIR" he also became a public officer who can be prosecuted under Article 217 . . .
." 41
The Court is not persuaded. Article 222 of the RPC reads:
Officers included in the preceding provisions. — The provisions of this chapter shall apply to private
individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds,
revenues, or property and to any administrator or depository of funds or property attached, seized or
deposited by public authority, even if such property belongs to a private individual.
"Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and
unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a
literal interpretation would be either impossible or absurd or would lead to an injustice." 42 This is particularly observed in
the interpretation of penal statutes which "must be construed with such strictness as to carefully safeguard the rights of
the defendant . . . ." 43 The language of the foregoing provision is clear. A private individual who has in his charge any of
the public funds or property enumerated therein and commits any of the acts defined in any of the provisions of Chapter
Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public officers.
Nowhere in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed
a public officer.
After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo Azarcon and his co-accused Jaime
Ancla to be both private individuals erroneously charged before and convicted by Respondent Sandiganbayan which had
no jurisdiction over them. The Sandiganbayan's taking cognizance of this case is of no moment since "(j)urisdiction
cannot be conferred by . . . erroneous belief of the court that it had jurisdiction." 44 As aptly and correctly stated by the
petitioner in his memorandum:
From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual
when he agreed to act as depositary of the garnished dump truck. Therefore, when the information
charged him and Jaime Ancla before the Sandiganbayan for malversation of public funds or
property, the prosecution was in fact charging two private individuals without any public officer being
similarly charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the
controversy and therefore all the proceedings taken below as well as the Decision rendered by
Respondent Sandiganbayan, are null and void for lack of jurisdiction. 45
WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET ASIDE and declared
NULL and VOID for lack of jurisdiction. No costs.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
 SECOND DIVISION
G.R. No. 130872 March 25, 1999
FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
BELLOSILLO, J.:
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. 3Red 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.
. . . (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 —
. . . . 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: . . . . 4. Making untruthful statements in a narration of facts.
xxx xxx xxx
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 . . . . 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 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 conspiricy in the commission of Estafa between father and son.
However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3019, 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 Assembly woman 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 kabataan barangay, their terms of office shall be coterminous with
their tenure as president fo their respective association and federation.
xxx xxx xxx
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 Assembly woman 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, 16or 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. (emphasis 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. These 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. 23Reliance 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 disconhfort 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
. . . . 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 Information 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.

Puno, Mendoza, Quisumbing and Buena, JJ., concur.

 EN BANC
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and
MANUEL P. REYES, petitioner, vs. HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, respondents.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development
Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief
Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to prevent useless and unnecessary expenditures of
public funds by way of salaries and other operational expenses attached to the office . . . ." 2 Paragraph (d) reads —
(d) Chairman administrator — The President shall appoint a professional manager as administrator
of the Subic Authority with a compensation to be determined by the Board subject to the approval of
the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the
chief executive officer of the Subic Authority: 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 (emphasis supplied).
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, maintain that the proviso in par. (d) of
Sec. 13 herein-above quoted in italics 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," 3 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", 4 since it was Congress through the
questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of
the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . (g) Appointment
of new employees, creation of new position, promotion, or giving salary increases. — During the
period of forty-five days before a regular election and thirty days before a special election, (1) any
head, official or appointing officer of a government office, agency or instrumentality, whether national
or local, including government-owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or creates and fills any new position, except
upon prior authority of the Commission. The Commission shall not grant the authority sought unless
it is satisfied that the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the election. As an
exception to the foregoing provisions, a new employee may be appointed in case of urgent
need: Provided, however, That notice of the appointment shall be given to the Commission within
three days from the date of the appointment. Any appointment or hiring in violation of this provision
shall be null and void. (2) Any government official who promotes, or gives any increase of salary or
remuneration or privilege to any government official or employee, including those in government-
owned or controlled corporations . . . .
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.
The principal question is 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.
In full, 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, G.R. No. 83815, 6 ". . . . 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 . . . ." 7
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.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to
another post if so allowed by law or by the primary functions of his office. 8 But, the contention is fallacious. Section 94 of
the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail
over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is
that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice
otherwise unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary
functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when
allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not
providing any exception to the rule against appointment or designation of an elective official to the government post,
except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning
agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be
designated ex officio member of the Judicial and Bar Council. 11
The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not
without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus —
MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the
prohibition is more strict with respect to elective officials, because in the case of appointive officials,
there may be a law that will allow them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there
will be certain situations where the law should allow them to hold some other positions. 12
The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to
elective officials who are governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an
excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the prohibition against
the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their
deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend
additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an
ex officio capacity as provided by law, without receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts
as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The
phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct
to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress
would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par.,
Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the
Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex
officio.
Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag
remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the
issue. It is a legislative choice." 15 The Senator took a view that the constitutional proscription against appointment of
elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City
instead of directing the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it
suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex
officio.
The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to
uphold the constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the
argument that if no elective official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the
Constitution allowing him to receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not
affect the constitutionality of the subject proviso. In any case, the Vice-President for example, an elective official who
may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position
if specifically authorized by law.
Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d),
itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA,
although he really has no choice under the law but to appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority
therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or
persons having authority therefor, to fill an office or public function and discharge the duties of the same. 18 In his
treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to
Woodbury, J., 20 "the choice of a person to fill an office constitutes the essence of his appointment," 21 and Mr. Justice
Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of
discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court 23 we held:
The power to appoint is, in essence, discretionary. The appointing power has the right of choice
which he may exercise freely according to his judgment, deciding for himself who is best qualified
among those who have the necessary qualifications and eligibilities. It is a prerogative of the
appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom
to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the
appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time
limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President,
such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the
qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or
indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can
only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and
constitutes an irregular restriction on the power of appointment. 24
In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of
its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one
eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is
precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the
essential element of choice, is no power at all and goes against the very nature itself of appointment.
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. The deliberation in the Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with
TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his
position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive position.
MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave
the service, but if he is prohibited from being appointed within the term for which he was elected, we
may be depriving the government of the needed expertise of an individual. 25
Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public
office.
Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility,
appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility
imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position,
his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision
should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his
seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose
their elective posts only after they have been appointed to another government office, while other incumbent elective
officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well
as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office.
". . . . The effect is quite different where it is expressly provided by law that a person holding one office shall be ineligible SO ORDERED.
to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office
(State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to
Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason, JJ.,
render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262.
concur.
Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution,
or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either
generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the Padilla, J., is on leave.
second so that any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283
Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board
and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the
Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not
necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer,
the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void
because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by
reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public
. . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is
adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213;
Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may
have been received by respondent Gordon pursuant to his appointment may be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said respondent made pursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor
deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated —

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of
this Authority that we are creating; (much) as I, myself, would like to because I know the capacity,
integrity, industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific,
burdensome and heavy responsibility, we cannot do it because of the constitutional prohibition which
is very clear. It says: "No elective official shall be appointed or designated to another position in any
capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the
ocean amidst the raging of the waves." 30 One of the characteristics of the Constitution is permanence, i.e., "its capacity
to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions
or occasional infatuations of the people with ideas or personalities . . . . Such a Constitution is not likely to be easily
tampered with to suit political expediency, personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, 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," is declared unconstitutional; consequently, the appointment pursuant
thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman
and Chief Executive Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his
authority as officer de facto of SBMA are hereby UPHELD.
 EN BANC 1. Secretary of Justice

G. R. No. 156982 September 8, 2004

2. Secretary of National Defense
NATIONAL AMNESTY COMMISSION, petitioner, vs. COMMISSION ON AUDIT, JUANITO G. ESPINO, Director IV,
NCR, Commission on Audit, and ERNESTO C. EULALIA, Resident Auditor, National Amnesty
Commission. respondents. 3. Secretary of the Interior and Local Government

CORONA, J.:
This petition for review1 seeks to annul the two decisions of respondent Commission on Audit (COA) 2 dated July 26,
20013 and January 30, 2003,4 affirming the September 21, 1998 ruling5 of the National Government Audit Office (NGAO).
The latter in turn upheld Auditor Ernesto C. Eulalia's order disallowing the payment of honoraria to the representatives of
petitioner's ex officio members, per COA Memorandum No. 97-038.
The ex officio members may designate their representatives to the Commission. Said Representatives
shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by
law. (Emphasis supplied)
Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident auditor and the
NGAO disallowing payment of honoraria to the ex officio members' representatives, to no avail.

Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994 by then President
Fidel V. Ramos through Proclamation No. 347. The NAC is tasked to receive, process and review amnesty applications.
It is composed of seven members: a Chairperson, three regular members appointed by the President, and the
Secretaries of Justice, National Defense and Interior and Local Government as ex officio members.6
It appears that after personally attending the initial NAC meetings, the three ex officio members turned over said
responsibility to their representatives who were paid honoraria beginning December 12, 1994. However, on October 15,
1997, NAC resident auditor Eulalia disallowed on audit the payment of honoraria to these representatives amounting
to P255,750 for the period December 12, 1994 to June 27, 1997, pursuant to COA Memorandum No. 97-038. On
September 1, 1998, the NGAO upheld the auditor's order and notices of disallowance were subsequently issued to the
following:7
Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed grave abuse of
discretion in: (1) implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2
of the Civil Code; (2) invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance
of honoraria under said Memorandum; (3) applying the Memorandum to the NAC ex officio members' representatives
who were all appointive officials with ranks below that of an Assistant Secretary; (4) interpreting laws and rules outside of
its mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void, and (5) disallowing the payment
of honoraria on the ground of lack of authority of representatives to attend the NAC meetings in behalf of the ex
officio members.8
We hold that the position of petitioner NAC is against the law and jurisprudence. The COA is correct that there is no legal
basis to grant per diem, honoraria or any allowance whatsoever to the NAC ex officio members' official representatives.

REPRESENTATIVES AMOUNT The Constitution mandates the Commission on Audit to ensure that the funds and properties of the government are
1. Cesar Averilla P 2,500.00 validly, efficiently and conscientiously used. Thus, Article IX-D of the Constitution ordains the COA to exercise exclusive
Department of National Defense and broad auditing powers over all government entities or trustees, without any exception:
2. Ramon Martinez 73,750.00
Department of National Defense Section 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and
3. Cielito Mindaro, 18,750.00 settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and
Department of Justice property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies,
4. Purita Deynata 62,000.00 or instrumentalities, including government-owned and controlled corporations with original charters, and on a
Department of Justice post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy
5. Alberto Bernardo 71,250.00 under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or
Department of the Interior And Local Government controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or
6. Stephen Villaflor 26,250.00 equity, directly or indirectly, from or through the government, which are required by law of the granting
Department of the Interior and Local Government institution to submit to such audit as a condition of subsidy or equity. However, where the internal control
7. Artemio Aspiras 1,250.00 system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary
Department of Justice or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general
accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other
P255,750.00 supporting papers pertaining thereto.

Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules and Regulations
of Proclamation No. 347), which was approved by then President Joseph Estrada on October 19, 1999. Section 1, Rule II
thereof provides:
Section 1, Composition - The NAC shall be composed of seven (7) members:
(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope
of its audit and examination, establish the techniques and methods required therefor, and promulgate
accounting and auditing rules and regulations, including those for the prevention and disallowance of
irregular, unnecessary, inexpensive, extravagant, or unconscionable expenditures, or uses of
government funds and properties.

a) A Chairperson who shall be appointed by the President;
b) Three (3) Commissioners who shall be appointed by the President;
c) Three (3) Ex-officio Members
Section 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise
whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. (Emphasis
supplied).
It is in accordance with this constitutional mandate that the COA issued Memorandum No. 97-038 on September 19,
1997:
 COMMISSION ON AUDIT MEMORANDUM NO. 97-038 Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.
SUBJECT: Implementation of Senate Committee Report No. 509, Committee on Accountability of Public
Officers and Investigations and Committee on Civil Service and Government Reorganization. We clarified this publication requirement in Tañada vs. Tuvera:10

The Commission received a copy of Senate Committee Report No. 509 urging the Commission on Audit to [A]ll statutes, including those of local application and private laws, shall be published as a condition
immediately cause the disallowance of any payment of any form of additional compensation or for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is
remuneration to cabinet secretaries, their deputies and assistants, or their representatives, in violation fixed by the legislature.
of the rule on multiple positions, and to effect the refund of any and all such additional compensation
given to and received by the officials concerned, or their representatives, from the time of the finality
Covered by this rule are presidential decrees and executive orders promulgated by the President in the
of the Supreme Court ruling in Civil Liberties Union v. Executive Secretary to the present. In the Civil
exercise of legislative powers whenever the same are validly delegated by the legislature or, at
Liberties Union case, the Supreme Court ruled that Cabinet Secretaries, their deputies and assistants
present, directly conferred by the Constitution. Administrative rules and regulations must also be
may not hold any other office or employment. It declared Executive Order 284 unconstitutional insofar
published if their purpose is to enforce or implement existing law pursuant to a valid delegation.
as it allows Cabinet members, their deputies and assistants to hold other offices in addition to their
primary office and to receive compensation therefor. The said decision became final and executory on
August 19, 1991. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be published. Neither is publication required of
the so-called letters of instructions issued by administrative superiors concerning the rules or
In view thereof, all unit heads/auditors/team leaders of the national government agencies and government
guidelines to be followed by their subordinates in the performance of their duties. (Emphasis supplied.)
owned or controlled corporations which have effected payment of subject allowances, are directed to
implement the recommendation contained in the subject Senate Committee Report by undertaking the
following audit action: COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of instruction which does not
need publication to be effective and valid. It is not an implementing rule or regulation of a statute but a directive issued by
the COA to its auditors to enforce the self-executing prohibition imposed by Section 13, Article VII of the Constitution on
1. On accounts that have not been audited and settled under certificate of settlements and
the President and his official family, their deputies and assistants, or their representatives from holding multiple offices
balances on record from August 19, 1991 to present - to immediately issue the Notices of
and receiving double compensation.
disallowance and corresponding certificate of settlements and balances.

Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the occasion to categorically explain this
2. On accounts that have been audited and settled under certificate of settlements and balances on
constitutional prohibition in Civil Liberties Union vs. The Executive Secretary:11
record - to review and re-open said accounts, issue the corresponding notices of disallowance, and
certify a new balance thereon. It is understood that the re-opening of accounts shall be limited
to those that were settled within the prescriptive period of three (3) years prescribed in Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and
Section 52 of P.D. 1445. assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to
the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which provides as follows:
3. On disallowances previously made on these accounts - to submit a report on the status of the
disallowances indicating whether those have been refunded/settled or have become final and "Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall
executory and the latest action taken by the Auditor thereon. not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or special privilege granted by
All auditors concerned shall ensure that all documents evidencing the disallowed payments are kept intact on
the Government or any subdivision, agency, or instrumentality thereof, including government-owned or
file in their respective offices.
controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their
office."
Any problem/issue arising from the implementation of this Memorandum shall be brought promptly to the
attention of the Committee created under COA Officer Order No. 97-698 thru the Director concerned, for
xxx xxx xxx
immediate resolution.

[D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members,
An initial report on the implementation of this Memorandum shall be submitted to the Directors concerned not
their deputies or assistants are concerned admit of the broad exceptions made for appointive officials
later than October 31, 1997. Thereafter, a quarterly progress report on the status of disallowances made shall
in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: "Unless
be submitted, until all the disallowances shall have been enforced.
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
The Committee created under COA Office Order No. 97-698, dated September 10, 1997, shall supervise the government-owned or controlled corporation or their subsidiaries."
implementation of this Memorandum which shall take effect immediately and shall submit a consolidated report
thereon in response to the recommendation of the Senate Committee on Accountability of Public Officers and
We rule in the negative.
Investigation and Committee on Civil Service and Government Reorganization. 9(Emphasis supplied)

xxx xxx xxx

Contrary to petitioner's claim, COA Memorandum No. 97-038 does not need, for validity and effectivity, the publication
required by Article 2 of the Civil Code:
But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission should see it fit to formulate
another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members
of the Cabinet, their deputies and assistants from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution itself.
xxx xxx xxx
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to
lay down the general rule applicable to all elective and appointive public officials and employees, while
Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section
13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of
the 1987 Constitution. . . .
xxx xxx xxx
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of
the Constitution must not, however, be construed as applying to posts occupied by the Executive
officials specified therein without additional compensation in an ex-officio capacity as provided by law
and as required by the primary functions of said officials' office. The reason is that these posts do no
comprise "any other office" within the contemplation of the constitutional prohibition but are properly
an imposition of additional duties and functions on said officials. …
xxx xxx xxx
[T]he prohibition under Section 13, Article VII is not to be interpreted as covering positions held
without additional compensation in ex-officio capacities as provided by law and as required by the
primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of
office." It refers to an "authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an
official character, or as a consequence of office, and without any other appointment or authority than that
conferred by the office." An ex-officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment. To illustrate, by express provision of law, the
Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine
Ports Authority, and the Light Rail Transit Authority.
xxx xxx xxx
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the
official concerned has no right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and covered by the compensation
attached to his principal office. x x x
xxx xxx xxx
…[E]x-officio posts held by the executive official concerned without additional compensation as
provided by law and as required by the primary functions of his office do not fall under the definition of
"any other office" within the contemplation of the constitutional prohibition... (Emphasis supplied).
Judicial decisions applying or interpreting the laws or the Constitution, such as the Civil Liberties Union doctrine, form
part of our legal system.12 Supreme Court decisions assume the same authority as valid statutes. 13 The Court's
interpretation of the law is part of that law as of the date of enactment because its interpretation merely establishes the
contemporary legislative intent that the construed law purports to carry into effect.14
COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right of any individual,
except those provided for under the Constitution. Hence, publication of said Memorandum is not required for it to be
valid, effective and enforceable.
In Civil Liberties Union, we elucidated on the two constitutional prohibitions against holding multiple positions in the
government and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all
government employees against holding multiple government offices, unless otherwise allowed by law or the primary
functions of their positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his official
family from holding any other office, profession, business or financial interest, whether government or private, unless
allowed by the Constitution.
The NAC ex officio members' representatives who were all appointive officials with ranks below Assistant Secretary are
covered by the two constitutional prohibitions.
First, the NAC ex officio members' representatives are not exempt from the general prohibition because there is no law
or administrative order creating a new office or position and authorizing additional compensation therefor.
Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in
the government and receiving additional or double compensation:
SEC. 54. Limitation on Appointment. - (1) No elective official shall be eligible for appointment or designation in
any capacity to any public office or position during his tenure.
xxx xxx xxx
(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold
any other office or employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.
xxx xxx xxx
SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or employee shall
receive additional or double compensation unless specifically authorized by law nor accept without the consent
of the President, any present, emolument, office, or title of any kind form any foreign state.
Pensions and gratuities shall not be considered as additional, double or indirect compensation.
RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument.
The representatives in fact assumed their responsibilities not by virtue of a new appointment but by mere designation
from the ex officio members who were themselves also designated as such.
There is a considerable difference between an appointment and designation. An appointment is the selection by the
proper authority of an individual who is to exercise the powers and functions of a given office; a designation merely
connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an
earlier appointment.15
Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the
salary attached to the position. Without an appointment, a designation does not entitle the officer to receive the salary of
the position. The legal basis of an employee's right to claim the salary attached thereto is a duly issued and approved
appointment to the position,16 and not a mere designation.
Second, the ex officio members' representatives are also covered by the strict constitutional prohibition imposed on the
President and his official family.
First, the administrative order itself acknowledges that payment of allowances to the representatives must be authorized
by the law, that is, the Constitution, statutes and judicial decisions. However, as already discussed, the payment of such
allowances is not allowed, prohibited even.
Second, the administrative order merely allows the ex officio members to designate their representatives to NAC
meetings but not to decide for them while attending such meetings. Section 4 of the administrative order categorically
states:

Again, in Civil Liberties Union, we held that cabinet secretaries, including their deputies and assistants, who hold Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a quorum consisting of
positions in ex officio capacities, are proscribed from receiving additional compensation because their services are at least four members.
already paid for and covered by the compensation attached to their principal offices. Thus, in the attendance of the NAC
meetings, the ex officio members were not entitled to, and were in fact prohibited from, collecting extra compensation,
Thus, although the administrative order does not preclude the representatives from attending the NAC
whether it was called per diem, honorarium, allowance or some other euphemism. Such additional compensation is
meetings, they may do so only as guests or witnesses to the proceedings. They cannot substitute for the ex
prohibited by the Constitution.
officio members for purposes of determining quorum, participating in deliberations and making decisions.

Furthermore, in de la Cruz vs. COA17 and Bitonio vs. COA,18 we upheld COA's disallowance of the payment
Lastly, we disagree with NAC's position that the representatives are de facto officers and as such are entitled to
of honoraria and per diems to the officers concerned who sat as ex officio members or alternates. The agent, alternate or
allowances, pursuant to our pronouncement in Civil Liberties Union:
representative cannot have a better right than his principal, the ex officio member. The laws, rules, prohibitions or
restrictions that cover the ex officio member apply with equal force to his representative. In short, since the ex
officio member is prohibited from receiving additional compensation for a position held in an ex officio capacity, so is his "where there is no de jure officer, a de facto officer, who in good faith has had possession of the office and has
representative likewise restricted. discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in
appropriate action recover the salary, fees and other compensation attached to the office."
The Court also finds that the re-opening of the NAC accounts within three years after its settlement is within COA's
jurisdiction under Section 52 of Presidential Decree No. 1445, promulgated on June 11, 1978: A de facto officer "derives his appointment from one having colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on its face. (He is) one who is in possession of an office and
is discharging its duties under color of authority, by which is meant authority derived from an appointment,
SECTION 52. Opening and revision of settled accounts. (1) At any time before the expiration of three years
however irregular or informal, so that the incumbent be not a mere volunteer."21
after the settlement of any account by an auditor, the Commission may motu propio review and revise the
account or settlement and certify a new balance.
The representatives cannot be considered de facto officers because they were not appointed but were merely
designated to act as such. Furthermore, they are not entitled to something their own principals are prohibited from
More importantly, the Government is never estopped by the mistake or error on the part of its agents. 19Erroneous
receiving. Neither can they claim good faith, given the express prohibition of the Constitution and the finality of our
application and enforcement of the law by public officers do not preclude subsequent corrective application of the statute.
decision in Civil Liberties Union prior to their receipt of such allowances.

In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void, the COA ruled that:
WHEREFORE the petition is hereby DISMISSED for lack of merit.

Petitioner further contends that with the new IRR issued by the NAC authorizing the ex-officio members to
SO ORDERED.
designate representatives to attend commission meetings and entitling them to receive per diems, honoraria
and other allowances, there is now no legal impediment since it was approved by the President. This
Commission begs to disagree. Said provision in the new IRR is null and void for having been promulgated in Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez*, Carpio
excess of its rule-making authority. Proclamation No. 347, the presidential issuance creating the NAC, makes Morales*, Callejo, Sr., Azcuna, Tinga, Chico-Nazario,
no mention that representatives of ex-officio members can take the place of said ex-officio members during its
meetings and can receive per diems and allowances. This being the case, the NAC, in the exercise of its
quasi-legislative powers, cannot add, expand or enlarge the provisions of the issuance it seeks to implement
without committing an ultra vires act.20

We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely provides that:

The ex officio members may designate their representatives to the Commission. Said Representatives shall
be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law. (Emphasis
supplied).

The problem lies not in the administrative order but how the NAC and the COA interpreted it.
EN BANC
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture;
LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as
Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY
ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS
SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F.
BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO
ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health;
REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development
Authority, respondents.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both
seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July
25, 1987. The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition
to his primary position, hold not more than two positions in the government and government corporations and
receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies
or committees, or to boards, councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the
Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish
the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold
more than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations,
at least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or
undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to
the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as
follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or
be financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along
with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In
addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the
Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well
as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their
primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have
received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and
self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of
1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of government corporations: (a) when directly provided for in the
Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council
under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2)
days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article
I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public
officers –– one, the President and her official family, and the other, public servants in general –– allegedly "abolished the
clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for
the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of
government expected to lead by example." 7Article IX-B, Section 7, par. (2) 8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any
other office or employment in the government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and
clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10being the first official
construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB
of the Constitution, involving the same subject of appointments or designations of an appointive executive official to
positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284,
promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No.
284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by
the primary functions of the public official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by
virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office
or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed
as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom
deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The would be discontinued.
disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners
insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition
exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a
against the holding of multiple offices or employment in the government subsuming both elective and appointive public
Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated
officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically
an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other
maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to
office or employment during their tenure, unless otherwise provided in the Constitution itself.
Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as
Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials
holding other offices or employment in the government or elsewhere is concerned.
in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise
allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment
in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution
corporation or their subsidiaries." on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section
13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any
We rule in the negative.
time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled
corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its employment in the Government."
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of
the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition
ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
pertains to an office or employment in the government and government-owned or controlled corporations or their
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-
calculated to effect that purpose. 11
President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official
or boards of various government agencies and instrumentalities, including government-owned and controlled family is therefore all-embracing and covers both public and private office or employment.
corporations, became prevalent during the time legislative powers in this country were exercised by former President
Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies,
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or
instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of
indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in
presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members
any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of
including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions
these instrumentalities have remained up to the present time.
imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or
employees such as the Members of Congress, members of the civil service in general and members of the armed forces,
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to
officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in impose upon said class stricter prohibitions.
government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to
the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also
and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of
succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor
Membership in Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983."
deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We
Particularly odious and revolting to the people's sense of propriety and morality in government service were the data actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and,
contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case." 14
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two
(22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
government during their tenure when such is allowed by law or by the primary functions of their positions, members of
and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the
therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Vice- President, Members of the Cabinet, their deputies and assistants.
Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its
proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice
cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe
Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during
said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent
the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet
and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members
of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government
during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7,
par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their tenure.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries
and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing
policy direction in the areas of money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable;
and unreasonable or absurd consequences, if possible, should be avoided. 26

Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative.
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other
additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1)
concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived
of Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any public office or position
from official character merely, not expressly conferred upon the individual character, but rather annexed to the official
during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in Section 13,
position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any
Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the
other appointment or authority than that conferred by the office." 27 An ex-officio member of a board is one who is a
Constitution authorizing the Vice-President to become a member of the Cabinet, 15 and to act as President without
member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express
relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify. 16 Such absurd
provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the
consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1)
Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In
the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from
chairman and members of the Board to qualify they need only be designated by the respective department heads. With
all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into
the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already
view and to be so interpreted as to effectuate the great purposes of the instrument. 17Sections bearing on a particular
be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous
subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one
appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same
section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand
is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should
together. 19
be, because the representatives so designated merely perform duties in the Board in addition to those already performed
under their original appointments." 32
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make the words idle and nugatory. 20
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue
Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the
employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil
its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive Aeronautics Board.
and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the
language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise
negation. 21 The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only
alien to the primary function of a cabinet official, such additional functions would fall under the purview of "any other
to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the
office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of
Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2)
the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet
and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of
official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships
Section 8 (1), Article VIII.
in government-owned or controlled corporations and their subsidiaries.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or
must not, however, be construed as applying to posts occupied by the Executive officials specified therein without
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their
additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said
special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many
officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the
jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the
constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To
different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws
characterize these posts otherwise would lead to absurd consequences, among which are: The President of the
affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power
Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986).
vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments,
Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and
bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties and functions
Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson
being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies
and members. The respective undersecretaries and assistant secretaries, would also be prohibited.
or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an unwieldy and confused bureaucracy.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the
agencies.
primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law,
without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his principal office. It should be obvious that
if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually
and in legal contemplation performing the primary function of his principal office in defining policy in monetary and
banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled
to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the
Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to
Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by
the functions of his position," 36 express reference to certain high-ranking appointive public officials like members of the
Cabinet were made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there
are instances when although not required by current law, membership of certain high-ranking executive officials in other
offices and corporations is necessary by reason of said officials' primary functions. The example given by Commissioner
Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is
by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was
the proposed article on General Provisions. 39 At that time, the article on the Civil Service Commission had been
approved on third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only after
the draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the
General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the
primary functions of his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional guidelines in the
absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion
was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule
covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition in
said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then
Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-
B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by
the primary functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order
to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides
fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is
clear.1âwphi1 Debates in the constitutional convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not
talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or
employment in the government, except in those cases specified in the Constitution itself and as above clarified with
respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate
and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions
which cannot override the constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position
to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article
VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue
of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or
employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than
real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and
expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental
offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from
this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin
and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo
Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the
petitions have become moot and academic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered. 46 It has been held that "in cases where there is no de jure, officer, a de
facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any
one for such services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and
Davide, Jr., JJ., concur.
Sarmiento and Griño-Aquino, JJ., took no part.
 EN BANC
G.R. No. L-68159 March 18, 1985
HOMOBONO ADAZA, petitioner, vs. FERNANDO PACANA, JR., respondent
ESCOLIN, J.:
The issues posed for determination in this petition for prohibition with prayer for a writ of preliminary injunction and/or
restraining order are: [1] whether or not a provincial governor who was elected and had qualified as a Mambabatas
Pambansa [MP] can exercise and discharge the functions of both offices simultaneously; and [2] whether or not a vice-
governor who ran for the position of Mambabatas Pambansa, but lost, can continue serving as vice-governor and
subsequently succeed to the office of governor if the said office is vacated.
The factual background of the present controversy is as follows:
Petitioner Homobono A. Adaza was elected governor of the province of Misamis Oriental in the January 30, 1980
elections. He took his oath of office and started discharging his duties as provincial governor on March 3, 1980. Elected
vice-governor for said province in the same elections was respondent Fernando Pacana, Jr., who likewise qualified for
and assumed said office on March 3, 1980. Under the law, their respective terms of office would expire on March 3,
1986.
On March 27, 1984, respondent Pacana filed his certificate of candidacy for the May 14, 1984 Batasan Pambansa
elections; petitioner Adaza followed suit on April 27, 1984. In the ensuing elections, petitioner won by placing first among
the candidates, while respondent lost.
Petitioner took his oath of office as Mambabatas Pambansa on July 19, 1984 1 and since then he has discharged the
functions of said office.
On July 23, 1984, respondent took his oath of office as governor of Misamis Oriental before President Ferdinand E.
Marcos, 2 and started to perform the duties of governor on July 25, 1984.
Claiming to be the lawful occupant of the governor's office, petitioner has brought this petition to exclude respondent
therefrom. He argues that he was elected to said office for a term of six years, that he remains to be the governor of the
province until his term expires on March 3, 1986 as provided by law, and that within the context of the parliamentary
system, as in France, Great Britain and New Zealand, a local elective official can hold the position to which he had been
elected and simultaneously be an elected member of Parliament.
Petitioner further contends that respondent Pacana should be considered to have abandoned or resigned from the
position of vice-governor when he filed his certificate of candidacy for the 1984 Batas Pambansa elections; and since
respondent had reverted to the status of a mere private citizen after he lost in the Batas Pambansa elections, he could
no longer continue to serve as vice-governor, much less assume the office of governor.
1. The constitutional prohibition against a member of the Batasan Pambansa from holding any other office or
employment in the government during his tenure is clear and unambiguous. Section 10, Article VIII of the 1973
Constitution provides as follows:
Section 10 A member of the National Assembly [now Batasan Pambansa shall not hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof,
including government owned or controlled corporations, during his tenure, except that of prime
minister or member of the cabinet. ...
The language used in the above-cited section is plain, certain and free from ambiguity. The only exceptions mentioned
therein are the offices of prime minister and cabinet member. The wisdom or expediency of the said provision is a matter
which is not within the province of the Court to determine.
A public office is a public trust. 3 It is created for the interest and the benefit of the people. As such, a holder thereof "is
subject to such regulations and conditions as the law may impose" and "he cannot complain of any restrictions which
public policy may dictate on his holding of more than one office." 4 It is therefore of no avail to petitioner that the system
of government in other states allows a local elective official to act as an elected member of the parliament at the same
time. The dictate of the people in whom legal sovereignty lies is explicit. It provides no exceptions save the two offices
specifically cited in the above-quoted constitutional provision. Thus, while it may be said that within the purely
parliamentary system of government no incompatibility exists in the nature of the two offices under consideration, as
incompatibility is understood in common law, the incompatibility herein present is one created by no less than the
constitution itself. In the case at bar, there is no question that petitioner has taken his oath of office as an elected
Mambabatas Pambansa and has been discharging his duties as such. In the light of the oft-mentioned constitutional
provision, this fact operated to vacate his former post and he cannot now continue to occupy the same, nor attempt to
discharge its functions.
2. The second proposition advanced by petitioner is that respondent Pacana, as a mere private citizen, had no right to
assume the governorship left vacant by petitioner's election to the Batasan Pambansa. He maintains that respondent
should be considered as having abandoned or resigned from the vice-governorship when he filed his certificate of
candidacy for the Batas Pambansa elections. The point pressed runs afoul of Batas Pambansa Blg. 697, the law
governing the election of members of the Batasan Pambansa on May 14, 1984, Section 13[2] of which specifically
provides that "governors, mayors, members of the various sangguniang or barangay officials shall, upon filing a
certificate of candidacy, be considered on forced leave of absence from office." Indubitably, respondent falls within the
coverage of this provision, considering that at the time he filed his certificate of candidacy for the 1984 Batasan
Pambansa election he was a member of the Sangguniang Panlalawigan as provided in Sections 204 and 205 of Batas
Pambansa Blg. 337, 5 otherwise known as the Local Government Code. The reason the position of vice-governor was
not included in Section 13[2] of BP Blg. 697 is explained by the following interchange between Assemblymen San Juan
and Davide during the deliberations on said legislation:
MR. DAVIDE. If I was able to get correctly the proposed amendment it would cover only governors
and members of the different sanggunians? Mayor, governors?
MR. SAN JUAN. Governors, mayors, members of the various sanggunian or barangay officials. A
vice-governor is a member of the Sanggunian Panlalawigan.
MR. DAVIDE. All. Why don't we instead use the word, "Local officials?
MR. SAN JUAN. Well, Mr. Speaker, your humble representation ...
MR. DAVIDE. And, secondly, why don't we include the vice-governor, the vice-mayors?
MR. SAN JUAN. Because they are members of the Sanggunians, Mr. Speaker. They are covered by
the provision on members of sanggunian. [Record of Proceedings, February 20, 1984, p. 92, Rollo]
Thus, when respondent reassumed the position of vice-governor after the Batas Pambansa elections, he was acting
within the law. His succession to the governorship was equally legal and valid, the same being in accordance with
Section 204[2] [a] of the same Local Government Code, which reads as follows:
SECTION 204. Powers, Duties and Privileges:
1] x x x
2] He shall:
a] Assume the office of the governor for the unexpired term of the latter in the cases provided for in
Section 48, paragraph 1 6 of this Code;
WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.

Teehankee, Makasiar, Aquino, Concepcion Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente, Cuevas
and Alampay, JJ., concur.

Fernando, C.J., and Abad Santos, J., took no part.

EN BANC (Sgd) RODOLFO U. MANZANO
Judge
A.M. No. 88-7-1861-RTC October 5, 1988
An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on Justice are created
to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent ones, thus
IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE PROVINCIAL
alleviating jail congestion and improving local jail conditions. Among the functions of the Committee are—
COMMITTEE ON JUSTICE.

3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be
PADILLA, J.:
found to have committed abuses in the discharge of his duties and refer the same to proper authority
for appropriate action;
On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a
letter which reads:
3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper
administration of criminal justice.
Hon. Marcelo Fernan
Chief Justice of the Supreme Court
It is evident that such Provincial/City Committees on Justice perform administrative functions. Administrative functions
of the Philippines
are those which involve the regulation and control over the conduct and affairs of individuals for; their own welfare and
Manila
the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the
administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc., vs.
Thru channels: Hon. Leo Medialdea Tapucar, SP-07599-R, 29 September 1978, Blacks Law Dictionary).
Court Administrator
Supreme Court of the Philippines
Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that—

Sir:
Section 6. Supervision.—The Provincial/City Committees on Justice shall be under the supervision
of the Secretary of justice Quarterly accomplishment reports shall be submitted to the Office of the
By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of Ilocos Secretary of Justice.
Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte Provincial
Committee on Justice created pursuant to Presidential Executive Order No. 856 of 12 December
Under the Constitution, the members of the Supreme Court and other courts established by law shag not be designated
1986, as amended by Executive Order No. 326 of June 1, 1988. In consonance with Executive
to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII, Constitution).
Order RF6-04, the Honorable Provincial Governor of Ilocos Norte issued my appointment as a
member of the Committee. For your ready reference, I am enclosing herewith machine copies of
Executive Order RF6-04 and the appointment. Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges a
administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request.
Before I may accept the appointment and enter in the discharge of the powers and duties of the
position as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor to Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106)
request for the issuance by the Honorable Supreme Court of a Resolution, as follows: ably sets forth:

(1) Authorizing me to accept the appointment and to as assume and discharge
the powers and duties attached to the said position;
(2) Considering my membership in the Committee as neither violative of the
Independence of the Judiciary nor a violation of Section 12, Article VIII, or of the
second paragraph of Section .7, Article IX (B), both of the Constitution, and will
not in any way amount to an abandonment of my present position as Executive
Judge of Branch XIX, Regional Trial Court, First Judicial Region, and as a
member of the Judiciary; and
2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic
rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a
member of the judiciary being required to assume a position or perform a duty non-judicial in
character. That is implicit in the principle. Otherwise there is a plain departure from its command.
The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by
Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative
official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm
if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no
less than the maintenance of respect for the judiciary can be satisfied with nothing less.

This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or unbecoming
(3) Consider my membership in the said Committee as part of the primary
indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form part of the structure of
functions of an Executive Judge.
government. Their integrity and performance in the adjudication of cases contribute to the solidity of such structure. As
public officials, they are trustees of an orderly society. Even as non-members of Provincial/City Committees on Justice,
May I please be favored soon by your action on this request. RTC judges should render assistance to said Committees to help promote the laudable purposes for which they exist,
but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties.
Very respectfully yours,
ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED.
SO ORDERED.

Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.
 EN BANC
G.R. No. L-23258 July 1, 1967
ROBERTO R. MONROY, petitioner, vs. HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.
SYLLABUS
1. ELECTION LAW; COMMISSION ON ELECTIONS; SCOPE OF POWERS. — Since the powers of the Commission on
Elections are limited to matters connected with the "conduct of election," necessarily its adjudicatory or quasi-judicial
powers are likewise limited to controversies connected with the "conduct of elections."
2. ID.; ID.; ID.; MEANING OF PHRASE "CONDUCT OF ELECTIONS." — This phrase covers all the administrative
process of preparing and operating the election machinery so that the people could exercise their right to vote at the
given time (Guevarra v. Commission on Elections, 104 Phil., 268) All questions and controversies that may arise
therefrom are to be resolved exclusively by the Commission, subject to review only by the Supreme Court.
3. ID.; ID.; ID.; WHERE THERE IS NO ADMINISTRATIVE DISPUTE BEFORE THE COMMISSION; CASE AT BAR. —
In this case there appears to be no decision, order, or ruling of the Commission on any administrative question or
controversy. And even if there was a controversy before the Commission, the same did not and could not possibly have
anything to do with the conduct of elections. What the parties are actually controverting is whether or not petitioner was
still the municipal mayor after September 15, 1961 when his certificate of candidacy for Congressman was filed. This
purely legal dispute has absolutely no bearing or effect on the conduct of elections for the seat of Congressman for the
first district of Rizal. The election can go on irrespective of whether petitioner is considered resigned from his position of
municipal mayor or not. Hence, said question properly fell within the cognizance of the courts.
4. ID.; FORFEITURE OF OFFICE UPON FILING OF CERTIFICATE OF CANDIDACY. — Section 27 of the Revised
Election Code 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 forfeited forever
and nothing save a new election or appointment can restore the ousted official.
5. ID.; WITHDRAWAL OF CERTIFICATE OF CANDIDACY DOES NOT RENDER IT VOID AB INITIO. — The withdrawal
of a certificate of candidacy does not necessarily render the certificate void ab initio. Once filed, the permanent legal
effects produced thereby remain even if the certificate itself be subsequently withdrawn.
6. PUBLIC OFFICERS; DE FACTO OFFICER, RIGHTFUL INCUMBENT MAY RECOVER FROM De Facto OFFICER
SALARY RECEIVED DURING WRONGFUL TENURE. — The general rule is that the rightful incumbent may recover
from an officer 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 (Walker v. Hughes, 36 A 2d. 47, 151 ALR 946).
7. ID.; ID.; REASON FOR DE FACTO DOCTRINE. — It is cogently acknowledged 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
(2 Tañada & Carreon, Political Law of the Philippines, 1962, pp. 544-545).
8. ID.; ID.; DE FACTO OFFICER TAKES SALARIES AT HIS OWN RISK. — 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 (Walker v. Hughes, supra).
BENGZON, J.P., J.:
Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of
candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on
Elections. Three days later, or on September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy.
The Commission on Elections, per resolution,1 approved the withdrawal. But on September 21, 1961, respondent Felipe
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.
Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner against
respondents that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on
September 15, 1961; (b) respondent del Rosario became municipal mayor upon his having assumed office as such on
September 21, 1961; (c) 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; and (d) petitioner must pay respondent
P1,000.00 as moral damages.1äwphï1.ñët
This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the award of moral
damages which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a motion to reconsider.
Hence, this petition for certiorari to review the ruling of the Court of Appeals.
Petitioner first argues that both the lower court and the Court of Appeals had done what they had no jurisdiction to do —
review a resolution of the Commission on Elections. The submission is without merit.
The Constitution empowers the Commission on Elections to
x x x decide, save those involving the right to vote, all administrative questions affecting elections, including the
determination of the number and location of polling places, and the appointment of election inspectors and of
other election officials x x x . 2 (Emphasis supplied)
And the decisions, orders and rulings of the Commission on these administrative questions are reviewable only by the
Supreme Court.3 Since the powers of the Commission are limited to matters connected with the "conduct of elections,"
necessarily its adjudicatory or quasi-judicial powers are likewise limited to controversies connected with the "conduct of
elections." This phrase covers all the administrative process of preparing and operating the election machinery so that
the people could exercise their right to vote at the given time. 4 All questions and controversies that may arise therefrom
are to be resolved exclusively by the Commission, subject to review only by the Supreme Court.
However, in this case there appears to be no decision, order or ruling of the Commission on any administrative question
or controversy. There was no dispute before the Commission. Respondent never contested the filing of petitioner's
certificate of candidacy. Neither has he disputed before that body the withdrawal thereof. And even if there was a
controversy before the Commission, the same did not and could not possibly have anything to do with the conduct of
elections. What the parties are actually controverting is whether or not petitioner was still the municipal mayor after
September 15, 1961. This purely legal dispute has absolutely no bearing or effect on the conduct of the elections for the
seat of Congressman for the first district of Rizal. The election can go on irrespective of whether petitioner is considered
resigned from his position of municipal mayor or not. The only interest and for that matter, jurisdiction, of the Commission
on Elections in this regard is to know who are the running candidates for the forthcoming elections, for that affects the
conduct of election. So when petitioner withdrew the certificate announcing his candidacy for Congressman, as far as the
Commission could be concerned, petitioner was no longer interested in running for that seat. The matter of his having
forfeited his present position and the possible legal effect thereon by the withdrawal of his certificate was completely out
of the picture. Hence, that purely legal question properly fell within the cognizance of the courts.
Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec. 27 of the Rev.
Election Code providing that —
Any elective provincial, municipal or city official running for an office, other then 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 for another office. Only
the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a
new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L.
Reyes, in Castro v. Gatuslao, 98 Phil, 94, 196:
x x x The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be
taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen
 and unforeseeable since the vacating is expressly made as of the moment of the filing of the certificate of
candidacy x x x . (Emphasis supplied)

Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent and, hence, the
Commission's approval of its withdrawal invalidated such certificate for all legal purposes, is untenable. It nowhere
appears that the Commission's resolution expressly invalidated the certificate. The withdrawal of a certificate of
candidacy does not necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced
thereby remain even if the certificate itself be subsequently withdrawn. Moreover, both the trial court and the Court of
Appeals expressly found as a fact that the certificate in question was filed with petitioner's knowledge and consent. And
since the nature of the remedy taken by petitioner before Us would allow a discussion of purely legal questions only,
such fact is deemed conceded.5

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. In support of this he relies
solely upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been proclaimed and had assumed office but
was later on ousted in an election protest, is a de facto officer during the time he held the office of senator, and can retain
the emoluments received even as against the successful protestant. Petitioner's factual premise is the appellate court's
finding that he was a de facto officer when he continued occupying the office of mayor after September 15, 1961.

However, We agree with the Court of Appeals that the Rodriguez case is not applicable here for absence of factual and
legal similarities. The Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the office
and was subsequently ousted as a result of an election contest. These peculiar facts called for the application of an
established precedent in this jurisdiction that the candidate duly proclaimed must assume office notwithstanding a protest
filed against him and can retain the compensation paid during his incumbency. But the case at bar does not involve
a proclaimed elective official who will be ousted because of an election contest. 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 because of the operation of Sec. 27 of the Rev. Election Code. The established precedent
invoked in the Rodriguez case can not therefore be applied in this case.

It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer 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"6 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 acknowledged 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.8

Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto. Costs against
petitioner. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, and Angeles, JJ., concur.
Arsenio, J., is on leave.
Sanchez, Castro and Fernando, JJ., took no part.
 FIRST DIVISION
G.R. No. 110544 October 17, 1995
REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA,
(former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM,
NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS
ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA
ESTRELLANES, respondents.
SYLLABUS
1. CIVIL LAW; CIVIL CODE; PREJUDICIAL QUESTION; DEFINED AND ELABORATED. — A prejudicial question is one
that must be decided before any criminal prosecution may be instituted or before it may proceed (see Art. 36, Civil Code)
because a decision on that point is vital to the eventual judgment in the criminal case. Thus, the resolution of the
prejudicial question is a logical antecedent of the issues involved in said criminal case. A prejudicial question is defined
as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the
court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based
on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or innocence
of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately
related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues
raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play
generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue
which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the
civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal
case."
2. ID.; ID.; ID.; RATIONALE AND ELEMENTS, PRESENT. — The rationale behind the principle of prejudicial question is
to avoid two conflicting decisions. It has two essential elements: (a) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the
criminal action may proceed. All the elements of a prejudicial question are clearly and unmistakably present in this case.
There is no doubt that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are
closely related. The filing of the criminal case was premised on petitioners’ alleged partiality and evident bad faith in not
paying private respondents’ salaries and per diems as sectoral representatives, while the civil action was instituted
precisely to resolve whether or not the designations of private respondents as sectoral representatives were made in
accordance with law. More importantly, the resolution of the civil case will certainly determine if there will still be any
reason to proceed with the criminal action.
3. ADMINISTRATIVE LAW; PUBLIC OFFICERS; ELEMENTS TO QUALIFY AS DE FACTO OFFICER. — The
conditions and elements of de facto officership are the following: 1) There must be a de jure office; 2) There must be
color of right or general acquiescence by the public; and 3) 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.
KAPUNAN, J.:
Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to
set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May
1993 in Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners'
motion for suspension of their arraignment.
The present controversy arose from the following antecedents:
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 by then Secretary Luis T. Santos of the Department of Local Government. Private
respondents Binaohan and Estrellanes 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 and enjoined Mayor Reynaldo
Tuanda to recognize private respondents as sectoral representatives.
On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental,
Branch 35, docketed as Special Civil Action No. 9661, 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, docketed as Civil Case No. 9955 entitled
"Reynaldo Tuanda, et al. versus Secretary of the Department of Local Government, et al."
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 thus:
INFORMATION
The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses
REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P.
AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS
A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended, committed as follows:
That during the period from February 1989 to February 1991 and subsequent
thereto, in the Municipality of Jimalalud, Negros Oriental, and within the
jurisdiction of this Honorable Court, accused, all public officers, Mayor
REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO G. FABURADA,
Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K.
MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of
their official functions and taking advantage of their public positions, with evident
bad faith, manifest partiality, and conspiring and confederating with each other
did, then and there, wilfully and unlawfully cause undue injury to Sectoral
Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay
despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED
FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE
HUNDRED PESOS (P108,900.00) representing respectively their per diems,
salaries and other privileges and benefits, and such undue injury continuing to
the present to the prejudice and damage of Bartolome Binaohan and Delia
Estrellanes.
CONTRARY TO LAW. 1
On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal
Case No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before the Regional Trial
Court of Dumaguete City. 2
On 16 January 1992, the 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. 3
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663,
along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935,
88072, and 90205) all promulgated on August 24, 1990, ruled that:
B.P. Blg. 337 explicitly required that before the President (or the Secretary of
the Department of Local Government) may appoint members of the local
legislative bodies to represent the Industrial and Agricultural Labor Sectors,
there must be a determination to be made by the Sanggunian itself that the said
sectors are of sufficient number in the city or municipality to warrant
representation after consultation with associations and persons belonging to the
sector concerned.
The Supreme Court further ruled —
For that matter, the Implementing Rules and Regulations of the Local
Government Code even prescribe the time and manner by which such
determination is to be conducted by the Sanggunian.
Consequently, in cases where the Sanggunian concerned has not yet
determined that the Industrial and Agricultural Labor Sectors in their particular
city or municipality are of sufficient number to warrant representation, there will
absolutely be no basis for the designation/appointments.
In the process of such inquiry as to the sufficiency in number of the sector concerned to warrant
representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with associations and
persons belonging to the sector concerned. Consultation with the sector concerned is made a pre-
requisite. This is so considering that those who belong to the said sector are the ones primarily
interested in being represented in the Sanggunian. In the same aforecited case, the Supreme Court
considers such prior determination by the Sanggunian itself (not by any other person or body) as a
condition sine qua non to a valid appointment or designation.
Since in the present case, there was total absence of the required prior determination by the
Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations of private
defendants as sectoral representatives null and void.
This verdict is not without precedence. In several similar cases, the Supreme Court invariably
nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not complied
with. Just to cite one case, the Supreme Court ruled:
There is no certification from the Sangguniang Bayan of Valenzuela that the
sectors concerned are of sufficient number to warrant representation and there
was no consultation whatsoever with the associations and persons belonging to
the Industrial and Agricultural Labor Sectors. Therefore, the appointment of
private respondents Romeo F. Bularan and Rafael Cortez are null and void
(Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No. 86394, August 24,
1990). 4
Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV No. 36769,
where the same is currently pending resolution.
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for suspension of
proceedings filed by petitioners. Said respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it
appears, nevertheless, that the private complainants have been rendering services on the basis of
their respective appointments as sectoral members of the Sangguniang Bayan of the Municipality of
Jimalalud, Negros Oriental; and that their said appointments enjoy the presumption of regularity.
Having rendered such services, the private complainants are entitled to the salaries attached to their
office. Even 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. In other words, regardless of the decision that may be rendered in Civil Case
No. 9955, the private complainants are entitled to their withheld salaries for the services they have
actually rendered as sectoral representatives of the said Sangguniang Bayan. Hence, the decision
that may be rendered by the Regional Trial Court in Civil Case No. 9955 would not be determinative
of the innocence or guilt of the accused.
WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial
Question filed by the accused through counsel, is hereby DENIED for lack of merit.
SO ORDERED. 5
Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision promulgated by the
trial court nullifying the appointments of private respondents but it was, likewise, denied in an order issued by respondent
Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the said motion were a mere rehash of
petitioners' original motion to hold the case in abeyance. 6 The dispositive portion of its order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled today
is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K.
Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are, however, hereby ordered to show
cause in writing within ten (10) days from service hereof why they should not be cited for contempt of
court for their failure to appear in court today for arraignment.
In case of an adverse resolution on the motion to quash which is to be filed by the counsel for the
defense, set this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates the trial
to start at 8:30 o'clock in the morning.
SO ORDERED. 7
On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the
issuance of an extended resolution. 8
No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent Sandiganbayan set
the arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused from the scheduled hearing today which We
deem to be excusable, reset this case for arraignment on June 30, 1993 and for trial on the merits
on June 30 and July 1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in the morning.
Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering that the
accused come all the way from Himalalud, Negros Oriental, no postponement will be allowed.
 SO ORDERED. 9
Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent Sandiganbayan the
following errors:
A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions for the
suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a prejudicial
issue before the Court of Appeals in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the
proceedings that would entail a retrial and rehearing by it of the basic issue involved, i.e., the validity
of the appointments of private respondents and their entitlement to compensation which is already
pending resolution by the Court of Appeals in C.A. G.R. CV No. 36769; and
C. 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. 10
In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents' designation as
sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying suspension
of the proceedings in the criminal case against petitioners.
respondents' salaries and per diems as sectoral representatives, while the civil action was instituted precisely to resolve
whether or not the designations of private respondents as sectoral representatives were made in accordance with law.
More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to proceed with
the criminal action.
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. 16 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.

A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents'
proceed (see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the criminal case. designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for
Thus, the resolution of the prejudicial question is a logical antecedent of the issues involved in said criminal case. 11 services actually rendered.

A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue The conditions and elements of de facto officership are the following:
involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be
determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another
1) There must be a de jure office;
court or tribunal. 12 It is a question based on a fact distinct and separate from "the crime but so intimately connected with
it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not
only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also 2) There must be color of right or general acquiescence by the public; and
that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would
necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both
3) There must be actual physical possession of the office in good faith. 18
pending and there exists in the former an issue which must be preemptively resolved before the criminal action may
proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the
guilt or innocence of the accused in the criminal case." 13 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. 19
The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. 14 It has two essential
elements: WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent
Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from
proceeding with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R.
(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal
CV No. 36769.
action; and

SO ORDERED.
(b) the resolution of such issue determines whether or not the criminal action may proceed. 15

Padilla, Davide, Jr. and Bellosillo, JJ., concur.

Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV No. 36769,
constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings in the criminal
case against petitioners. Hermosisima, Jr., J., took no part.

All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the
facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely related. The filing
of the criminal case was premised on petitioners' alleged partiality and evident bad faith in not paying private
 THIRD DIVISION On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-889 (entitled "Creation of the PPA
Manager's Pool"), dated September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio A. Dayan. That
Special Order excluded the name of respondent from the pool-list and placed instead the name of petitioner as Manager
G.R. No. 129616 April 17, 2002
II, Resource Management Division. In effect, the Special Order implemented the August 11, 1988 Resolution of the PPA
Appeals Board. 1âwphi1.nêt
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners, vs. JULIETA
MONSERATE, respondent.
Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated November 2,
1988.10 She questioned her replacement under PPA Special Order No. 479-88, claiming that the proceedings before the
SANDOVAL-GUTIERREZ, J.: PPA Appeals Board were irregular because (1) she was not notified of the hearing before it; (2) she was not furnished a
copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner Anino; 11 (3) she
was not informed of the reasons behind her replacement; and (4) their Port Manager (in Iloilo City), who was then an
This petition for review on certiorari1 seeks to set aside the Decision dated June 20, 1997 of the Court of Appeals in CA- official member of the Board, was not included in the said proceedings.
G.R. No. 39670,2 declaring null and void the Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640
dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the reinstatement of Julieta G. Monserate
as Division Manager II of the Resources Management Division, Ports Management Office, Philippine Ports Authority On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a copy of PPA
(PPA), Iloilo City. Special Order No. 492-8812 dated October 21, 1988, also issued by General Manager Dayan. This PPA Order officially
reassigned her to the position of Administrative Officer (SG-15) which was petitioner Anino's former position and was
lower than her previous position as Finance Officer (SG 16) before she was appointed as Division Manager.
The facts are:

Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port
Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier II and
then as Finance Officer (SG-16) in 1980.3
Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on her earlier
appeal/request for clarification, respondent filed on November 25, 1988 a "precautionary appeal" 13 with the CSC. She
manifested that as of said date (November 25), she has not yet been furnished a certified copy of the PPA Appeals
Board Resolution.

In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent position of On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer dated October 1,
Manager II (SG-19) of the Resource Management Division, same office. The Comparative Data Sheet 4accomplished by 1988.14 It was also during this time when she learned that PPA General Manager Dayan had just issued petitioner's
the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the said position, thus:
appointment dated October 21, 1988 as Manager II in the Resource Management Division effective February 1, 1988.

"COMPARATIVE DATA SHEET On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner Anino's appointment
OFFICE: PMO ILOILO and at the same time questioning the propriety of the August 11, 1988 Resolution of the PPA Appeals Board. This appeal
DIVISION: RES. MANAGEMENT DIVISION remained pending with the CSC for more than six (6) years despite respondent's requests for early resolution. In the
POSITION: DIVISION MANAGER meantime, she assumed the position of Administrative Officer.
REQUIRED CS ELIG.: CS PROF / RA 1080
CANDIDATES ELIGIBILITY xxx TOTAL
Eventually, the CSC, in its Resolution No. 95-204315 dated March 21, 1995, dismissed respondent's appeal, thus:
1. MONSERATE, JULIETA CS Prof. xxx 79.5
2. ANINO, RAMON 1st grade xxx 70
3. TEODOSIO, APRIL PD 907 (CPA) xxx 67 "It is well-established rule that an appointment, although approved by this Commission, does not become final
4. MORTOLA, DARIO CS Prof. xxx 67 until the protest filed against it is decided by the agency or by the Commission. Although Monserate had
5. ESPINOSA, AMALIK Bar xxx 63.5 already assumed the position of RMD Manager II, the appointing authority may still withdraw the same if a
6. PERFECTO, BASCOS RA 1080 xxx 59.5" protest is seasonably filed. This is covered by Section 19, Rule VI of the Omnibus Rules implementing EO 292
x x x.

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed 5 respondent to the position of
Manager II (Resource Management Division). On even date, respondent assumed office and discharged the functions
thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA)
approved her appointment.
"Monserate's claim that she is more qualified than Anino is not relevant to the issue before this Commission. In
cases of protest filed or appealed to the Commission, the main question to be resolved is whether or not the
appointee meets the qualification standard. x x x. The Commission will not disturb the choice of the appointing
authority as long as the appointee meets the qualification prescribed for the position in question."

Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per the Comparative Data
Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board, protesting against respondent's appointment.
The PPA Appeals Board, in a Resolution6 dated August 11, 1988, sustained the protest and rendered ineffective
respondent's appointment based on "(1) CSC MC No. 5, s. 1988, Par. 3; 7 (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and
Par. B;8 and (3) Civil Service Eligibility." These grounds were not explained or discussed in the Resolution, the
dispositive portion of which reads:
Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. 95-6640 dated
October 24, 1995.
In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents the PPA General
Manager and petitioner Anino.

"WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as Resources On June 20, 1997, the Court of Appeals rendered a Decision16 nullifying the twin Resolutions of the CSC. It ruled that the
Management Division Manager of the Port Management Office of Iloilo." August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence and that the same was irregularly
issued due to lack of proper notice to respondent with respect to the Board's proceedings. It concluded that her
reassignment from the position of Manager II, Resource Management Division (SG-19), to the position of Administrative
Officer (SG-15) was a demotion violative of her constitutional right to security of tenure and due process. The dispositive
portion of the Court of Appeals' Decision reads:
"THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void Resolution Nos.
952043 and 95640 (should be 956640) dated March 21 and October 21, 1988 (should be October 24, 1995),
of the Civil service Commission; and directing the reinstatement of the petitioner to the position of Resource
Management Division Manager II.
"SO ORDERED."
Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition. On November
30, 1997, petitioner Anino retired from the government service.17
Petitioners ascribe to the Court of Appeals the following errors:
I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT MONSERATE WAS
DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER,
THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.
II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-NIGH RULE
THAT RESPONDENT MONSERATE'S APPOINTMENT AS RESOURCE MANAGEMENT DIVISION
MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE PROTEST FILED
AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR THE CSC.
III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN IGNORING THAT IN
CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS
WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION STANDARD.18
The pivotal issue in this case is whether or not there was due process when respondent was replaced by petitioner Anino
from her position as Manager II, Resource Management Division, and demoted as Administrative Officer.
Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of administrative
penalty, presupposes a conviction in an administrative case. Here, respondent was not charged of any administrative
case. Rather, she was displaced from her position as an "aftermath of the PPA reorganization, authorized by law, the
implementation of which having been carried out with utmost good faith."
Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of the PPA Appeals
Board which sustained petitioner Anino's timely protest against respondent's appointment. Petitioners theorize that the
appointment of respondent as Resource Management Division Manager did not become final until the protest filed
against her was favorably decided in her favor by the CSC. In support of this contention, they cited Section 19, Rule VI of
the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative Code of
1987), which provides inter alia:
"SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if the appointee
assumes the duties of the position and the appointee is entitled to receive the salary attached to the position.
However, the appointment, together with the decision of the department head, shall be submitted to the
Commission for appropriate action within 30 days from the date of its issuance, otherwise the appointment
becomes ineffective thereafter. Likewise, such appointment shall become ineffective in case the protest
is finally resolved against the protestee, in which case, he shall be reverted to his former position."
Petitioners also contend that the head of an agency, being the appointing authority, is the one most knowledgeable to
decide who can best perform the functions of the office. The appointing authority has a wide latitude of choice subject
only to the condition that the appointee should possess the qualifications required by law. Consequently, "the CSC acted
rightly when it did not interfere in the exercise of discretion by the PPA appointing authority, there being no evidence of
grave abuse of discretion thereof or violation of the Civil Service Law and Rules."
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do with respondent's demotion from the contested
position of Manager II, Resource Management Office (SG-19), to the lower position of Administrative Officer (SG-15).
Antithetically, it was precisely because of the said reorganization that respondent applied to the higher position of
Division Manager II. In fact, the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself
shows that respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six (6) contenders to the said
post. Respondent was eventually issued a permanent appointment as such Division Manager on February 1, 1988 by
then PPA General Maximo Dumlao, Jr., during which time she actually assumed office and discharged its functions. This
appointment was later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the Civil
Service Field Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of the PPA
Appeals Board when respondent was demoted to the lower position of Administrative Officer. This is further shown by
the following orders and appointments subsequently issued by then PPA General Manager Rogelio Dayan:
1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded respondent Monserate from the
PPA Managers' pool-list;
2. Appointment of respondent, dated October 1, 1988, to the position of Administrative Officer;
3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned respondent to the
position of Administrative Officer; and
4. Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager II, Resource
Management Division, effective February 1, 1988.
Therefore, contrary to petitioners' claim, respondent was demoted, not by reason of the PPA reorganization in 1988, but
due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining petitioner Anino's protest against
respondent's appointment.
Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the PPA Appeals
Board which "upholds the appointment of Ramon A. Anino as Resource Management Division Manager." But how
can it uphold his appointment when he was not yet appointed then? It bears stressing that he was appointed on a much
later date - October 21, 1988, or more than two (2) months after August 11, 1998 when the PPA Appeals Board
Resolution was issued. Stated differently, the PPA Appeals Board could not uphold an appointment which was not yet
existing.
Equally questionable are the grounds for respondent's demotion stated in the August 11, 1998 Resolution: "(1) CSC MC
No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility." These
grounds are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the
reason for her demotion.
We uphold the Court of Appeals' finding that the August 11, 1998 PPA Appeals Board Resolution was void for lack of
evidence and proper notice to respondent. As aptly held by the Appellate Court:
"In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the appointment of the
private respondent (Ramon Anino) as Division Manager, the grounds against petitioner's (Julieta Monserate)
appointment were: a) the CSC MC No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par.
B; and c) Civil service eligibility.
 "x x x
"To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by evidence. Of the
CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her appointment as
Manager. x x x.
"With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and
recommendation of her appointment as Manager II, passed several committees created by the PPA. x x x.
Moreover, she had a 1.9 average performance rating compared to the private respondent who only got 2.03. x
x x.
"On eligibility, she has a Career Service Professional eligibility while the private respondent only has a First
Grade Civil Service Eligibility.
"She added that she was not aware of any proceeding on her demotion as a Division Manager. As a matter of
fact, it was only upon her iniative sometime during the latter part of November, 1988 that she was able to
obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution sustained the private
respondent's appointment as Division Manager even if on August 11, 1988, he was not yet extended any
appointment. As a matter of fact, he was appointed only on October 1, 1988 (should be October 21, 1988).
"Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and void. She
was never notified of any proceeding; she was not furnished either a copy of the resolution. What she received
instead was a Special Order dated September 29, 1988 already ordering her demotion. She was not at all
given the opportunity of defending herself before the Appeals Board.
"x x x.
"In the case now before us, the petitioner did not receive or was not given a copy of the August 11, 1988
Resolution of the Appeals Board. She did not even know that she was demoted until after she received a copy
of the of the Special Order No. 479-88."19
From all indications, it is indubitable that substantial and procedural irregularities attended respondent's demotion from
the position of Manager II, Resource Management Division, to the lower position of Administrative Officer. Indeed, her
demotion, tantamount to a revocation of her appointment as Manager II, is a patent violation of her constitutional rights to
security of tenure and due process. In Aquino vs. Civil Service Commission,20 this Court emphasized that "once an
appointment is issued and the moment the appointee assumes a position in the civil service under a completed
appointment, he acquires a legal, not merely equitable, right (to the position) which is protected not only by statute, but
also by the constitution, and cannot be taken away from him either by revocation of the appointment, or by removal,
except for cause, and with previous notice and hearing."
Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of qualified
persons to vacant positions in the civil service. 21 However, the moment the discretionary power of appointment is
exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be
revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was
ever established to justify the revocation of respondent's appointment by demoting her. Respondent's security of tenure
guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive
exercise of the appointing power.22
Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource
Management Division, it merely restored her appointment to the said position to which her right to security of tenure had
already attached. To be sure, her position as Manager II never became vacant since her demotion was void. In this
jurisdiction, "an appointment to a non-vacant position in the civil service is null and void ab initio."23
We now delve on the backwages in favor of respondent.
The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages. This
matter becomes controversial because respondent assumed the lower position of Administrative Officer during the
pendency of her protest against petitioner Anino's appointment to the contested position. Also, petitioner Anino retired
from the service on November 30, 1997.
In this respect, while petitioner Anino's appointment to the contested position is void, as earlier discussed, he is
nonetheless considered a de facto officer during the period of his incumbency.24 A de facto officer is one who is in
possession of an office and who openly exercises its functions under color of an appointment or election, even though
such appointment or election may be irregular.25 In Monroy vs. Court of Appeals,26 this Court ruled that a rightful
incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his
wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de
facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for
whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs.
Executive Secretary,27 this Court allowed a de facto officer to receive emoluments for actual services rendered but only
when there is no de jure officer, thus:
"x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of
the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office,
and may in appropriate action recover the salary, fees and other compensations attached to the office."
In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to
the emoluments attached to the office, even if he occupied the office in good faith. This rule, however, cannot be applied
squarely on the present case in view of its peculiar circumstances. Respondent had assumed under protest the position
of Administrative Officer sometime in the latter part of 1988, which position she currently holds. Since then, she has been
receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower
position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to
her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived
thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative
Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials
pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same
must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the
time of his retirement on November 30, 1997.1âwphi1.nêt
WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated June 20, 1997
is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is ordered to pay respondent Julieta
Monserate backpay differentials pertaining to the period from the time he wrongfully assumed the contested position of
Manager II up to his retirement on November 30, 1997.
SO ORDERED.
Panganiban, and Carpio, JJ., concur.
Melo, J., On official leave.
Vitug, J., Acting Chairman.
 EN BANC
[G.R. No. 103903. September 11, 1992.]
MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G. TIOZON, Petitioners, v. RAUL. A. DAZA,
HON. CAMILO SABIO, as Secretary of the House of Representatives, MR. JOSE MARIA TUAÑO, as Officer-in-
Charge, Gen. Services Division of the House of Representatives, MRS. ROSALINDA G. MEDINA, as Chief
Accountant of the House of Representatives, and the HON. COMMISSION ON AUDIT, Respondents.
SYLLABUS
1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; HOUSE ELECTORAL TRIBUNAL; SHALL BE THE SOLE JUDGE
OF ALL CONTESTS RELATING TO THE ELECTION, RETURNS AND QUALIFICATIONS OF ITS MEMBERS. — Under
Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns and qualification of its members. Since petitioners challenge the qualifications of
Congressman Daza, the appropriate remedy should have been to file a petition to cancel respondent Daza’s certificate of
candidacy before the election or a quo warranto case with the House Electoral Tribunal within ten (10) days after Daza’s
proclamation.
2. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; WRIT OF PROHIBITION; NOT INTENDED TO PROVIDE FOR ACTS
ALREADY CONSUMMATED. — A writ of prohibition can no longer be issued against respondent since his term has
already expired. A writ of prohibition is not intended to provide for acts already consummated.
3. ADMINISTRATIVE LAW; PUBLIC OFFICERS; DE FACTO OFFICERS; ENTITLED TO EMOLUMENT FOR ACTUAL
SERVICES RENDERED. — As a de facto public officer, respondent cannot be made to reimburse funds disbursed
during his term of office because his acts are as valid as those of a de jure officer. Moreover, as a de facto officer, he is
entitled to emoluments for actual services rendered.
ROMERO, J.:
On February 18, 1992, Petitioners, residents of the second Congressional District of Northern Samar filed the instant
petition for prohibition seeking to disqualify respondent Raul Daza, then incumbent congressman of the same
congressional district, from continuing to exercise the functions of his office, on the ground that the latter is a greencard
holder and a lawful permanent resident of the United States since October 16, 1974.
Petitioners allege that Hr. Daza has not, by any act or declaration, renounced his status as permanent resident, thereby
violating Section 68 of Batas Pambansa Bilang 881 (Omnibus Election Code) and Section 18, Article XI of the 1987
Constitution.
On February 25, 1992, we required respondents to comment. On March 13, 1992, Respondents, through the Solicitor
General, filed a motion for extension of time to file their comment for a period of thirty days or until April 12, 1992.
Reacting to the said motion, petitioners on March 30, 1992, manifested their opposition to the 30-day extension of time
stating that such extension was excessive and prayed that respondent instead be granted only 10 days to file their
comment. On May 5, 1992, the Court noted the manifestation and opposition.
On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a petition before the COMELEC to
disqualify respondent Daza from running in the recent May 11, 1992 elections on the basis of Section 68 of the Omnibus
Election Code (SPC 92-084) and that the instant petition is concerned with the unlawful assumption of office by
respondent Daza from June 30, 1987 until June 30, 1992. 1
On April 10, 1992, respondent Congressman Daza filed his comment denying the fact that he is a permanent resident of
the United States; that although he was accorded a permanent residency status on October 8, 1980 as evidenced by a
letter order of the District Director, US Immigration and Naturalization Service, Los Angeles, U.S.A., 2 he had long
waived his status when he returned to the Philippines on August 12, 1985. 3
On April 13, 1992, public respondent Camilo Sabio, Secretary General of the House of Representatives, Mr. Jose Mari
Tuaño, as OIC of the General Services Division, Mrs. Rosalinda G. Medina, as Chief Accountant of the House of
Representatives and Commission on Audit, filed their comment. They contend that if indeed Congressman Daza is a
greencard holder and a permanent resident of the United States of America, then he should be removed from his
position as Congressman. However, they opined that only Congressman Daza can best explain his true and correct
status as a greencard holder. Until he files his comment to the petition, petitioners’ prayer for temporary restraining order
and/or writ of preliminary injunction should not be granted. 4
Eight (8) days later, respondent Daza, reacting to the petition before the COMELEC (SPC 92-084) and hypothesizing
that the case before the COMELEC would become moot should this Court find that his permanent resident status ceased
when he was granted a US non-immigrant visa, asked this Court to direct the COMELEC to dismiss SPC No. 92-084. 5
On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the petition and required
the parties to file their respective memoranda.
The central issue to be resolved in this case is whether or not respondent Daza should be disqualified as a member of
the House of Representatives for violation of Section 68 of the Omnibus Election Code.
Petitioners insist that Congressman Daza should be disqualified from exercising the functions of his office being a
permanent resident alien of the United States at the time when he filed his certificate of candidacy for the May 11, 1987
Elections. To buttress their contention, petitioners cite the recent case of Caasi v. Court of Appeals. 6
In support of their charge that respondent Daza is a greencard holder, petitioners presented to us a letter from the United
States Department of Justice, Immigration and Naturalization Service (INS) which reads: 7
File No. A20 968 618
Date: Nov. 5, 1991
LOS914732
Geraghty, O’Loughlin and Kenney
Attn: David C. Hutchinson
386 N. Wasbasha Street
St. Paul, Minn. 55102-1308
SUBJECT: Daza, Raul A.
Your request was received in this office on _________; please note the paragraph(s) checked below:
x x x
10. [XX] Other remarks:
Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent Resident on Oct. 16, 1974.
As far as we know subject (sic) still has his greencard. No he has not applied for citizenship.
Sincerely, (sic)
Sgd.
District Director
Form G-343 (Rev. 8-20-82)N
We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is evident from the
manifestation filed by petitioners dated April 6, 1992 8 that they seek to unseat respondent from his position as
Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30, 1992. Secondly,
jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987
Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns
and qualification of its members. Since petitioners challenge the qualifications of Congressman Daza, the appropriate
remedy should have been to file a petition to cancel respondent Daza’s certificate of candidacy before the election 9 or a
quo warranto case with the House Electoral Tribunal within ten (10) days after Daza’s proclamation. 10 Third, a writ of
prohibition can no longer be issued against respondent since his term has already expired. A writ of prohibition is not
intended to provide for acts already consummated. 11 Fourth, as a de facto public officer, 12 respondent cannot be
made to reimburse funds disbursed during his term of office because his acts are as valid as those of a de jure officer.
Moreover, as a de facto officer, he is entitled to emoluments for actual services rendered. 13

ACCORDINGLY, the Court Resolved to DISMISS the instant petition for being MOOT and ACADEMIC.

SO ORDERED.

Narvasa C.J., Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Nocon and Bellosillo, JJ., concur.

Gutierrez, Jr., Cruz and Feliciano, JJ., are on leave.

Melo and Campos, Jr., JJ., took no part.

 EN BANC
G.R. No. L-3913 August 7, 1952
EULOGIO RODRIGUEZ, SR., plaintiff-appellant, vs. CARLOS TAN, defendant-appellee.
SYLLABUS
1. SENATOR, OUSTED THROUGH ELECTION PROTEST, AS A DE FACTO OFFICER; RIGHT TO COMPENSATION,
EMOLUMENTS AND ALLOWANCES. — A senator who had been proclaimed and had assumed office, but was later on
ousted as a result of an election protest, is a de facto officer during the time he held the office of senator, and is entitled
to the compensation, emoluments and allowances which our Constitution provides for the position. This is the policy and
the rule that has been followed consistently in this jurisdiction.
2. JUDGMENTS; RES JUDICATA; DAMAGES IN ELECTION PROTEST; ELECTORAL TRIBUNAL, SCOPE OF
POWERS OF. — Where the Senate Electoral Tribunal chose to pass sub silentio, or ignored altogether, an important
claim for damages in connection with an election protest — a matter incident to the power and authority given to the
Tribunal by the Constitution, whose jurisdiction over election cases is ample and unlimited — the clear implication is that
it deemed it unjustified. This matter cannot be passed upon in another action for recovery of said damages in accordance
with the principle of res judicata.
3. PLEADINGS AND PRACTICE; COMPLAINT, AVERMENT IN, AS A CONCLUSION OF LAW; MOTION TO DISMISS.
— The averment in a complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law —
not a statement of fact - when the particular facts on which the alleged usurpation is predicated are not set forth therein.
Such averment cannot be deemed admitted by a motion to dismiss.
BAUTISTA ANGELO, J.:
Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and allowances and the sum of
P35,524.55 as damages, upon the plea that the latter usurped the office of Senator of the Philippines which rightfully
belongs to the former from December 30, 1947, to December 27, 1949.
Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines, and from that date
until December 1949, he continously collected the salaries, emoluments and privileges attendant to that office amounting
to P18,400; that protest having been filed by plaintiff against defendant, the Senate Electoral Tribunal on December 16,
1949, rendered judgment declaring plaintiff to have been duly elected to the office; and that by reason of such
usurpation, plaintiff suffered damages in the amount of P35,524.55 for expenses he incurred in prosecuting the protest.
On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the judgment rendered by the
Senate Electoral Tribunal in the protest case is a bar to this action under the principle of res judicata, and, on the other,
that said Tribunal denied without any reservation the claim of the plaintiff for expenses incurred in prosecuting the
protest.
The issue having been thus joined upon the motion to dismiss, the Court entered on an order dismissing the complaint
with costs. From this order plaintiff has appealed.
The averment in the complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law, —
not a statement of fact, — inasmuch as the particular facts on which the alleged usurpation is predicated are not set forth
therein. Hence such averment cannot be deemed admitted by the motion to dismiss (Fressel vs. Mariano Uy Chanco &
Sons & Co., 34 Phil., 122). Moreover, such averment is negatived by the decision of the Senate Electoral Tribunal in the
protest case which says that defendant was one of those proclaimed elected as Senator in the general elections held on
November 11, 1947. Defendant, cannot, therefore, be considered a usurper as claimed in the complaint.
With this preliminary statement, let us now proceed to determine the only issue involved in this appeal, to wit, whether
defendant, who has been proclaimed, took the oath of office, and discharged the duties of Senator, can be ordered to
reimburse the salaries and emoluments he has received during his incumbency to the plaintiff who has been legally
declared elected by the Senate Electoral Tribunal. .
Plaintiff claims that, as defendant was found and by final judgment not to have been entitled to the office of Senator, and,
as such, he was during the time he discharged that office a mere de facto officer, he should reimbursed to the plaintiff the
salaries and emoluments he has received on the following grounds; (1) because the salaries and emoluments follow and
are inseparable from legal title to the office and do not depend on whether the duties of the office are discharged or not;
and (2) because such a rule tends to curb election frauds and lessens the danger and frequency of usurpation or
instrusion into the office. Plaintiffs invites the attention of the Court to the annotation appearing in 93 A.L.R. 258,273 et
seq., supplemented in 151 A.L.R. 952, 960, et seq., wherein more than 100 cases are cited in support of the rule.
Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible cannot be invoked in
the present case, since it runs counter to the principle and rule long observed in this jurisdiction to the effect that one who
has been elected to an office, and has been proclaimed by the corresponding authority, has a right to assume the office
and discharge its functions notwithstanding the protest filed against his election, and as a necessary consequence he
has likewise the right to collect and received the salaries and emoluments thereunto appertaining as a compensation for
the salaries he has rendered. Defendants avers that plaintiff already attempted to seek the reimbursement of the salaries
and emoluments he had received in the protest he has filed against him Senate Electoral Tribunal constitutes a bar to his
right to collect the same salaries and emoluments in the present case.
After a careful consideration of the issue in the light of the law and precedents obtaining in this jurisdiction, we are
inclined to uphold the point of view of the defendant. There is no question that the defendant acted as a de facto officer
during the time he held the office of Senator. He was one of the candidates of the Liberal Party in the elections of
November 11, 1947, and was proclaimed as one of those who had been elected by the Commission on Elections, and
thereafter he took the oath of office and immediately entered into the performance of the duties of the position. Having
been thus duly proclaimed as Senator and having assumed office as required by law, it cannot be disputed that
defendant is entitled to the compensation, emoluments and allowances which our Constitution provides for the position
(article VI, section 14). This is as it should be. This is in keeping with the ordinary course of events. This is simple justice.
The emolument must go to the person who rendered service unless the contrary is provided. There is no averment in the
complaint that he is linked with any irregularity vitiating his election. This is the policy and the rule that has been followed
consistently in this jurisdiction in connection with the provisions held by persons who had been elected thereto but were
later ousted as a result of an election protest. The right of the persons elected to compensation during their incumbency
has always been recognized. We cannot recall of any precedent wherein the contrary rule has been upheld.
A case which may be invoked in support of this point of view is Page vs. U.S. (127 U.S. 67; 32 Law ed. 65), decided by
the Supreme Court of the United States. In that case, one William A. Pirce was declared elected, received a certificate of
election, was sworn in and took his seat in the Congress of the United States. His election was contested by Charles H.
Page, and as a result the House of Representatives found that Pirce was not duly elected his seat vacant. An election
was thereafter held to fill the vacancy and Page was duly elected. Thereupon Page was sworn in and took his seat. Page
later sued to recover the salary received by Price during his incumbency. The Supreme Court ruled that he was not
entitled to it holding that "one whose credentials showed that he was regularly elected a member of Congress, and who
was sworn in and took his seat, and served, and drew his salary, was — although his seat was contested, and
subsequently he was declared by Congress not to have been elected, and this seat was declared vacant — the
predecessor of the person elected to fill the vacancy". This case, thought it arose under a special statute, is significant in
that it regarded Pirce as the lawful predecessor of Page in the office to which he was later legally elected. Pirce was
declared entitled to the salary and emoluments of the office.
We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the salaries and emoluments should
follow the legal title to the office and should not depend and whether the duties of the office are discharged or not,
knowing that it is predicated on a policy designed to discourage the Commission of frauds and to lessen the danger and
frequency of usurpation or intrusion into the office which defeat the will of the people. We are conscious that, if the rule is
adopted, it would indeed have a wholesome effect in future elections and would serve as a deterring factor in the
commission of frauds, violence and terrorism which at the times are committed in some sectors of our country to the
detriment of public interest. But an examination of the cases relied upon by him, discloses that in some states, like
Indiana, New York, Michigan, California, Lousiana, Idaho, Missouri and Washington, the doctrine advocated is premised
on express statutory by reason of usurpation, (Mechem, A Treatise on the Law of Public Offices and Officers, pp. 223-
224; 93 A.L.R. pp. 284-287), whereas in the rest in the ruling is based on common law (Kreitz vs. Behrensmeyer, 24
A.L.R. 223-224). Under such predicament, it is indeed hard to see how we can extend here the force and effect of such
doctrine as we are urged, knowing well that, as a rule, "neither the English nor the American common law as in force in
these Islands upon our courts" (U.S. vs. Cuna, 12 Phil., 241; Arnedo vs. Llorente and Liongson, 18 Phil., 257, 262) while,
on the other hand, there is nothing in our status which would authorize us to adopt the rule. For us to follow the
suggestion of the plaintiff would be legislate by judicial ruling which is beyond the province of the Court. Nor are we
justified to follow a common law principle which runs counter to a precedent long observed in this jurisdiction.

Another reason that may be involved in opposition to the claim of the plaintiff is the principle of res judicata. It appears
that plaintiff had already set up this claim in the protest he filed against the defendant before the Senate Electoral
Tribunal, but when the case was decided on the merits the Tribunal passed up this matter sub silentio. In our opinion,
this silence may be interpreted as a denial of the relief. This is a matter which can be considered as an incident to the
power and authority given to the Electoral Tribunal by our Constitution, whose jurisdiction over election cases is ample
and unlimited (Sanidad et al. vs. Vera et al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to
pass sub silentio, or ignore altogether, this important claim, the clear implication is that it deemed it unjustified. This
matter, therefore, cannot now be passed upon in line with the doctrine laid down in the case of Kare vs. Locsin, (61 Phil.,
541), wherein the Court, among other things, said;

Locsin drew his pay by resolution and authority of the Legislature. The propriety of those payments cannot be
questioned on this complaint. We recognize Locsin's rigth to receive and to retain the compensation because
the Legislature voted it to him in spite of Mr. Kare's pending contest and claim to that compensation. The
legislature's carries the corollary of Mr. Kare's lack of right to the same compensation. The Legislature might
possibly have required reimbursement by Locsin had it been its intention to recognize Mr. Kare's claim to the
same compensation; but not having done so, Locsin's superior right to this compensation is res judicata for the
courts. (Kare vs. Locsin, 61 Phil., pp. 541, 546.)

The same consideration may be made with regard to the claim for damages contained in the second cause of action of
the complaint.

Wherefore, the order appealed from is affirmed, with costs against the appellant.

Bengzon, Montemayor, and Labrador, JJ., concur.

Paras, C.J., concurs in the result.
 EN BANC
G.R. No. 120193 March 6, 1996
LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; AWARD OF PROTEST EXPENSES AND ATTORNEY’S
FEES; WITHOUT BASIS; CASE AT BAR. — We find respondent COMELEC’s reasoning in awarding the damages in
question to be fatally flawed. The COMELEC found the election protest filed by the petitioner to be clearly unfounded
because its own appreciation of the contested ballots yielded results contrary to those of the trial court. Assuming, ex
gratia argumentis, that this is a reasonable observation not without basis, it is nonetheless fallacious to conclude a
malicious intention on the part of petitioner to molest private respondent on the basis of what respondent COMELEC
perceived as an erroneous ruling of the trial court. In other words, the actuations of the trial court, after the filing of a case
before it, are its own, and any alleged error on its part does not, in the absence of clear proof, make the suit "clearly
unfounded" for which the complainant ought to be penalized. Insofar as the award of protest expenses and attorney’s
fees are concerned, therefore we find them to have been awarded by respondent COMELEC without basis, the election
protest not having been a clearly unfounded one under the aforementioned circumstances.
2. ID.; ID.; TRIAL COURT’S ORDER GRANTING EXECUTION OF JUDGMENT PENDING APPEAL; WARRANTED
AND JUSTIFIED BY THE CIRCUMSTANCES IN CASE AT BAR. — Respondent COMELEC also found the order
granting execution of judgment pending appeal to be defective because of alleged non-compliance with the requirement
that there be a good and special reason to justify execution pending appeal. We, however, find that the trial court acted
judiciously in the exercise of its prerogatives under the law in issuing the order granting execution pending appeal. First,
it should be noted that the applicability of the provisions of the Rules of Court, relating to execution pending appeal, has
ceased to be debatable after we definitively ruled in Garcia v. de Jesus (206 SCRA 779) that "Section 2, Rule 39 of the
Rules of Court, which allows Regional Trial Courts to order executions pending appeal upon good reasons stated in a
special order, may be made to apply by analogy or suppletorily to election contests decided by them." It is not disputed
that petitioner filed a bond in the amount of P500,000.00 as required under the Rules of Court. It is also now a settled
rule that "as much recognition should be given to the value of the decision of a judicial body as a basis for the right to
assume office as that given by law to the proclamation made by the Board of Canvassers." ". . . Why should the
proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies
attendant to a protest, and not the decision of a court of justice? Indeed . . . the board of canvassers is composed of
persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more
apt to yield to extraneous considerations . . . the board must act summarily, practically racing against time, while, on the
other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better technical
preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation
before rendering judgment. . ." Without evaluating the merits of the trial court’s actual appreciation of the ballots
contested in the election protest, we note on the face of its decision that the trial court relied on the findings of the
National Bureau of Investigation (NBI) handwriting experts which findings private respondent did not even bother to
rebut. We thus see no reason to disregard the presumption of regularity in the performance of official duty on the part of
the trial court judge. Capping this combination of circumstances which impel the grant of immediate execution is the
undeniable urgency involved in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal
before the COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so the trial court
reasonably perceived execution pending appeal to be warranted and justified. Anyway, the bond posted by petitioner
could cover any damages suffered by any aggrieved party. It is true that mere posting of a bond is not enough reason to
justify execution pending appeal, but the nexus of circumstances aforechronicled considered together and in relation to
one another, is the dominant consideration for the execution pending appeal.
3. ID.; ID.; DE FACTO OFFICER; LEGALLY ENTITLED TO THE EMOLUMENTS OF THE OFFICE; CASE AT BAR. —
We deem the award of salaries and other emoluments to be improper and lacking legal sanction. Respondent
COMELEC ruled that inapplicable in the instant case is the ruling in Rodriquez v. Tan (91 Phil. 724) because while in that
case the official ousted was the one proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner
only by the trial court and assumed office by virtue of an order granting execution pending appeal. Again, respondent
COMELEC sweepingly concluded, in justifying the award of damages, that since petitioner was adjudged the winner in
the elections only by the trial court and assumed the functions of the office on the strength merely of an order granting
execution pending appeal, the petitioner occupied the position in an illegal manner as a usurper. We hold that petitioner
was not a usurper because, while a usurper is one who undertakes to act officially without any color of right, 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 undisputably
legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in good faith, has had possession of the
office and had discharged the duties pertaining thereto" and is thus "legally entitled to the emoluments of the office."
4. ID.; ID.; THE VICTORIOUS PARTY IN AN ELECTION CASE CANNOT BE INDEMNIFIED FOR EXPENSES WHICH
HE HAS INCURRED IN AN ELECTORAL CONTEST IN THE ABSENCE OF A WRONGFUL ACT OR OMISSION OR
BREACH OF OBLIGATION CLEARLY ATTRIBUTABLE TO THE LOSING PARTY. — Section 259 of the Omnibus
Election Code only provides for the granting in election cases of actual and compensatory damages in accordance with
law. The victorious party in an election case cannot be indemnified for expenses which he has incurred in an electoral
contest in the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing party.
Evidently, if any damage had been suffered by private respondent due to the execution of judgment pending appeal, that
damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or damage or injury
inflicted without injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law
provides no remedy.
HERMOSISIMA, JR., J.:p
Novel is the situation created by the decision of the Commission on Elections which declared the winner in an election
contest and awarded damages, consisting of attorney's fees, actual expenses for xerox copies, unearned salary and
other emoluments for the period, from March, 1994 to April, 1995, en masse denominated as actual damages,
notwithstanding the fact that the electoral controversy had become moot and academic on account of the expiration of
the term of office of the Municipal Mayor of Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary restraining order and
writ of preliminary injunction, seeking the review of the decision en banc 1 of the Commission of Elections (COMELEC)
denying the motion for reconsideration of the decision 2 of its First Division, 3 which reversed the decision 4 of the
Regional Trial Court 5 in the election case 6 involving the herein parties. While the Regional Trial Court had found
petitioner Luis Malaluan to be the winner of the elections for the position of Municipal Mayor of Kidapawan, North
Cotabato, the COMELEC, on the contrary, found private respondent Joseph Evangelista to be the rightful winner in said
elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in the Municipality
of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held on May 11, 1992. Private
respondent Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly elected Mayor for
having garnered 10,498 votes as against petitioner's 9,792 votes. Evangelista was, thus, said to have a winning margin
of 706 votes. But, on May 22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out of
the total 181 precincts of the said municipality. The trial court declared petitioner as the duly elected municipal mayor of
Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court found private respondent
liable not only for Malaluan's protest expenses but also for moral and exemplary damages and attorney's fees. On
February 3, 1994, private respondent appealed the trial court decision to the COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending appeal. The motion was
granted by the trial court, in an order, dated March 8, 1994, after petitioner posted a bond in the amount of P500,000.00.
By virtue of said order, petitioner assumed the office of Municipal Mayor of Kidapawan, North Cotabato, and exercised
the powers and functions of said office. Such exercise was not for long, though. In the herein assailed decision adverse
to Malaluan's continued governance of the Municipality of Kidapawan, North Cotabato, the First Division of the
Commission on Elections (COMELEC) ordered Malaluan to vacate the office, said division having found and so declared
private respondent to be the duly elected Municipal Mayor of said municipality. The COMELEC en banc affirmed said
decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the May, 1992 elections expired on June 30,
1995. This petition, thus, has become moot and academic insofar as it concerns petitioner's right to the mayoralty seat in
his municipality 7 because expiration of the term of office contested in the election protest has the effect of rendering the
same moot and academic. 8
When the appeal from a decision in an election case has already become moot, the case being an election protest
involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering
of a decision on the merits would be of practical value. 9 This rule we established in the case of Yorac
vs. Magalona 10 which we dismissed because it had been mooted by the expiration of the term of office of the Municipal
Mayor of Saravia, Negros Occidental. This was the object of contention between the parties therein. The recent case
of Atienza vs. Commission on Elections, 11 however, squarely presented the situation that is the exception to that rule.
Comparing the scenarios in those two cases, we explained:
Second, petitioner's citation of Yorac vs. Magalona as authority for his main proposition is grossly
inappropriate and misses the point in issue. The sole question in that case centered on an election
protest involving the mayoralty post in Saravia, Negros Occidental in the general elections of 1955,
which was rendered moot and academic by the expiration of the term of office in December, 1959. It
did not involve a monetary award for damages and other expenses incurred as a result of the
election protest. In response to the petitioner's contention that the issues presented before the court
were novel and important and that the appeal should not be dismissed, the Court held — citing the
same provision of the Rules of Court upon which petitioner staunchly places reliance — that a
decision on the merits in the case would have no practical value at all, and forthwith dismissed the
case for being moot. That is not the case here. In contradistinction to Yorac, a decision on the merits
in the case at bench would clearly have the practical value of either sustaining the monetary award
for damages or relieving the private respondent from having to pay the amount thus awarded. 12
Indeed, this petition appears now to be moot and academic because the herein parties are contesting an elective post to
which their right to the office no longer exists. However, the question as to damages remains ripe for adjudication. The
COMELEC found petitioner liable for attorney's fees, actual expenses for xerox copies, and unearned salary and other
emoluments from March, 1994 to April, 1995, en masse denominated as actual damages, default in payment by
petitioner of which shall result in the collection of said amount from the bond posted by petitioner on the occasion of the
grant of his motion for execution pending appeal in the trial court. Petitioner naturally contests the propriety and legality
of this award upon private respondent on the ground that said damages have not been alleged and proved during trial.
What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion in awarding the
aforecited damages in favor of private respondent.
The Omnibus Election Code provides that "actual or compensatory damages may be granted in all election contests or
in quo warranto proceedings in accordance with law." 13 COMELEC Rules of Procedure provide that "in all election
contests the Court may adjudicate damages and attorney's fees as it may deem just and as established by the evidence
if the aggrieved party has included such claims in his pleadings." 14 This appears to require only that the judicial award of
damages be just and that the same be borne out by the pleadings and evidence The overriding requirement for a valid
and proper award of damages, it must be remembered, is that the same is in accordance with law, specifically, the
provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as
actual or compensatory damages." The Civil Code further prescribes the proper setting for allowance of actual or
compensatory damages in the following provisions:
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good
faith is liable shall be those that are the natural and probable consequences of the breach of the
obligation, and which the parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obliger shall be responsible for all damages
which may be reasonably attributed to the non-performance of the obligation.
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is not necessary that
such damages have been foreseen or could have reasonably been foreseen by the defendant.
Considering that actual or compensatory damages are appropriate only in breaches of obligations in cases of contracts
and quasi-contracts and on the occasion of crimes and quasi-delicts where the defendant may be held liable for all
damages the proximate cause of which is the act or omission complained of, the monetary claim of a party in an election
case must necessarily be hinged on either a contract or a quasi-contract or a tortious act or omission or a crime, in order
to effectively recover actual or compensatory damages. 15 In the absence of any or all of these, "the claimant must be
able to point out a specific provision of law authorizing a money claim for election protest expenses against the losing
party" 16. For instance, the claimant may cite any of the following provisions of the Civil Code under the chapter on
human relations, which provisions create obligations not by contract, crime or negligence, but directly by law:
Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
xxx xxx xxx
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs any of the following rights and liberties of
another person shall be liable to the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
In any of the cases referred to in this article, whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. . . . 17
Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00 constituting salary
and other emoluments from March, 1994 to April, 1995 that would have accrued to him had there not been an execution
of the trial court's decision pending appeal therefrom in the COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of an election protest,
an elective official who has been proclaimed by the COMELEC as winner in an electoral contest and who assumed office
and entered into the performance of the duties of that office, is entitled to the compensation, emoluments and allowances
legally provided for the position. 18 We ratiocinated in the case of Rodriguez vs. Tan that:
This is as it should be. This is in keeping with the ordinary course of events. This is simple justice.
The emolument must go to the person who rendered the service unless the contrary is provided.
There is no averment in the complaint that he is linked with any irregularity vitiating his election. This
is the policy and the rule that has been followed consistently in this jurisdiction in connection with
positions held by persons who had been elected thereto but were later ousted as a result of an
election protest. The right of the persons elected to compensation during their incumbency has
always been recognized. We cannot recall of any precedent wherein the contrary rule has been
upheld. 19
 In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while the general
rule is that the ousted elective official is not obliged to reimburse the emoluments of office that he had received
before his ouster, he would be liable for damages in case he would be found responsible for any unlawful or
tortious acts in relation to his proclamation. We quote the pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which
led to and resulted in his proclamation as senator-elect, when in truth and in fact he was not so
elected, he would be answerable for damages. In that event the salary, fees and emoluments
received by or paid to him during his illegal incumbency would be a proper item of recoverable
damage. 20
The criterion for a justifiable award of election protest expenses and salaries and emoluments, thus, remains to
be the existence of a pertinent breach of obligations arising from contracts or quasi-contracts, tortious acts,
crimes or a specific legal provision authorizing the money claim in the context of election cases. Absent any of
these, we could not even begin to contemplate liability for damages in election cases, except insofar as
attorney's fees are concerned, since the Civil Code enumerates the specific instances when the same may be
awarded by the court.
For these reasons, protestee-appellant seeks to recover the following:
Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs
plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney's fees and expenses
of litigation should be recovered. 21
Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of respondent
COMELEC for awarding actual damages to private respondent in the form of reimbursement for attorney's fees, actual
expenses for xerox copies, and salary and other emoluments that should have accrued to him from March, 1994 to April,
1995 had the RTC not issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory damages in this wise:
. . . under the present legal setting, it is more difficult than in the past to secure an award of actual or
compensatory damages either against the protestant or the protestee because of the requirerments
of the law.
In the instant case, however, We are disposed to conclude that the election protest filed by the
protestant is clearly unfounded. As borne out by the results of the appreciation of ballots conducted
by this Commission, apparently the protest was filed in bad faith without sufficient cause or has been
filed for the sole purpose of molesting the protestee-appellant for which he incurred expenses. The
erroneous ruling of the Court which invalidated ballots which were clearly valid added more injury to
the protestee-appellant. This would have been bearable since he was able to perfect his appeal to
this Commission. The final blow, however, came when the Court ordered the execution of judgment
pending appeal which, from all indications, did not comply with the requirements of Section 2, Rule
39 of the Rules of Court. There was no good and special reason at all to justify the execution of
judgment pending appeal because the protestee's winning margin was 149 votes while that of the
protestant — after the Court declared him a winner — was only a margin of 154 votes. Clearly, the
order of execution of judgment pending appeal was issued with grave abuse of discretion.
1. Actual damages representing attorney's fees for the new counsel who handled the Appeal and the
Petition for Certiorari before the Court of Appeals . . . P372,500.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P1.50 . . .
P11,235.00
3. Actual expenses for xerox copying of ballots . . . P3,919.20
4. Actual damages for loss of salary and other emoluments since March 1994 as per attached
Certification issued by the Municipal Account of Kidapawan . . . P96,832.00 (up to October 1994
only)
Under Article 2208 of the New Civil Code attorney's fees and expenses of litigation can be recovered
(as actual damages) in the case of clearly unfounded civil action or proceeding. And, while the case
of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries and
allowances (as damages) from elected officials who were later ousted, under the theory that persons
elected has (sic) a right to compensation during their incumbency, the instant case is different. The
protestee-appellant was the one elected. He was ousted not by final judgment bur by an order of
execution pending appeal which was groundless and issued with grave abuse of discretion.
Protestant-appellee occupied the position in an illegal manner as a usurper and, not having been
elected to the office, but merely installed through a baseless court order, he certainly had no right to
the salaries and emoluments of the office.
Actual damages in the form of reimbursement for attorney's fees (P372,500.00), actual expenses for
xerox copies (P15,154.00), unearned salary and other emoluments from March 1994 to April 1995 or
14 months at P12,104.00 a month (P169,456.00), totalled P557,110.00. To (sic) this amount,
however, P300,000.00 representing that portion of attorney's fees denominated as success fee'
must be deducted this being premised on a contingent event the happening of which was uncertain
from the beginning. Moral damages and exemplary damages claimed are, of course, disallowed not
falling within the purview of Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual damages of P257,110.00,
the amount will be assessed, levied and collected from the bond of P500,000.00 which he put up
before the Court as
a condition for the issuance of the order of execution of judgment pending appeal. 22
Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The COMELEC en banc,
however, did not find any new matter substantial in nature, persuasive in character or sufficiently provocative to compel
reconsideration of said decision and accordingly affirmed in toto the said decision. Hence, this petition raises, among
others, the issue now solely remaining and in need of final adjudication in view of the mootness of the other issues anent
petitioner's right to the contested office the term for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to petitioner no breach of contract or
quasi-contract; or tortious act nor crime that may make him liable for actual damages. Neither has private respondent
been "able to point out to a specific provision of law authorizing a money claim for election protest expenses against the
losing party." 23
We find respondent COMELEC's reasoning in awarding the damages in question to be fatally flawed. The COMELEC
found the election protest filed by the petitioner to be clearly unfounded because its own appreciation of the contested
ballots yielded results contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a reasonable
observation not without basis, it is nonetheless fallacious to conclude a malicious intention on the part of petitioner to
molest private respondent on the basis of what respondent COMELEC perceived as an erroneous ruling of the trial court.
In other words, the actuations of the trial court, after the filing of a case before it, are its own, and any alleged error on its
part does not, in the absence of clear proof, make the suit "clearly unfounded" for which the complainant ought to be
penalized. Insofar as the award of protest expenses and attorney's fees are concerned, therefore we find them to have
been awarded by respondent COMELEC without basis, the election protest not having been a clearly unfounded one
under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment pending appeal to be defective because of
alleged non-compliance with the requirement that there be a good and special reason 24 to justify execution pending
appeal. We, however, find that the trial court acted judiciously in the exercise of its prerogatives under the law in issuing
the order granting execution pending appeal. First, it should be noted that the applicability of the provisions of the Rules
of Court, relating to execution pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de
Jesus 25 that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order executions pending
appeal upon good reasons stated in a special order, may be made to apply by analogy or suppletorily to election
contests decided by them." 26 It is not disputed that petitioner filed a bond in the amount of P500,000.00 as required
under the Rules of Court.
Finally, we deem the award of salaries and other emoluments to be improper and lacking legal sanction. Respondent
COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez vs. Tan 30 because while in that case the
official ousted was the one proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner only by
the trial court and assumed office by virtue of an order granting execution pending appeal. Again, respondent COMELEC
sweepingly concluded, in justifying the award of damages, that since petitioner was adjudged the winner in the elections
only by the trial court and assumed the functions of the office on the strength merely of an order granting execution
pending appeal, the petitioner occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act officially without any
color of right, 31 the petitioner exercised the duties of an elective office under color of election thereto. 32 It matters not
that it was the trial court and not the COMELEC that declared petitioner as the winner, because both, at different stages
of the electoral process, have the power to so proclaim winners in electoral contests. At the risk of sounding repetitive, if
only to emphasize this point, we must reiterate that the decision of a judicial body is no less a basis than the
proclamation made by the COMELEC-convened Board of Canvassers for a winning candidate's right to assume office,
for both are undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in good faith,
has had possession of the office and had discharged the duties pertaining thereto" 33 and is thus "legally entitled to the
emoluments of the office." 34
To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual and
compensatory damages in accordance with law. The victorious party in an election case cannot be indemnified for
expenses which he has incurred in an electoral contest in the absence of a wrongful act or omission or breach of
obligation clearly attributable to the losing party. Evidently, if any damage had been suffered by private respondent due
to the execution of judgment pending appeal, that damage may be said to be equivalent to damnum absque injuria,
which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage without violation of a
legal right, or a wrong done to a man for which the law provides no remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision dated May 5, 1995 that
private respondent Joseph Evangelista is the winner in the election for mayor of the Municipality of Kidapawan, North
Cotabato, that portion of the decision is deemed moot and academic because the term of office for mayor has long
expired. That portion of the decision awarding actual damages to private respondent Joseph Evangelista is hereby
declared null and void for having been issued in grave abuse of discretion and in excess of jurisdiction.

It is also now a settled rule that "as much recognition should be given to the value of the decision of a judicial body as a SO ORDERED.
basis for the right to assume office as that given by law to the proclamation made by the Board of Canvassers." 27
Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and
. . . Why should the proclamation by the board of canvassers suffice as basis of the right to assume Panganiban, JJ., concur.
office, subject to future contingencies attendant to a protest, and not the decision of a court of
justice? Indeed . . . the board of canvassers is composed of persons who are less technically
prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield
extraneous considerations . . . the board must act summarily, practically raising (sic) against time,
while, on the other hand, the judge has the benefit of all the evidence the parties can offer and of
admittedly better technical preparation and background, apart from his being allowed ample time for
conscientious study and mature deliberation before rendering judgment . . . . 28

Without evaluating the merits of the trial court's actual appreciation of the ballots contested in the election
protest, we note on the face of its decision that the trial court relied on the findings of the National Bureau of
Investigation (NBI) handwriting experts which findings private respondent did not even bother to rebut. We thus
see no reason to disregard the presumption of regularity in the performance of official duty on the part of the
trial court judge. Capping this combination of circumstances which impel the grant of immediate execution is
the undeniable urgency involved in the political situation in the Municipality of Kidapawan, North Cotabato. The
appeal before the COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and
so the trial court reasonably perceived execution pending appeal to be warranted and justified. Anyway, the
bond posted by petitioner could cover any damages suffered by any aggrieved party. It is true that mere
posting of a bond is not enough reason to justify execution pending appeal, but the nexus of circumstances
aforechronicled considered together and in relation to one another, is the dominant consideration for the
execution pending appeal. 29