G.R. No. 84301. April 7, 1993.

NATIONAL LAND TITLES AND DEEDS REGISTRATION ADMINISTRATION, petitioner,

vs.
CIVIL SERVICE COMMISSION and VIOLETA L. GARCIA, respondents.

The Solicitor General for petitioner.

Raul R. Estrella for private respondent.

SYLLABUS

1. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 649; REORGANIZED LAND REGISTRATION COMMISSION TO
NALTDRA; EXPRESSLY PROVIDED THE ABOLITION OF EXISTING POSITIONS. — Executive Order No. 649 authorized the
reorganization of the Land Registration Commission (LRC) into the National Land Titles and Deeds Registration
Administration (NALTDRA). It abolished all the positions in the now defunct LRC and required new appointments to be
issued to all employees of the NALTDRA. The question of whether or not a law abolishes an office is one of legislative
intent about which there can be no controversy whatsoever if there is an explicit declaration in the law itself. A closer
examination of Executive Order No. 649 which authorized the reorganization of the Land Registration Commission
(LRC) into the National Land Titles and Deeds Registration Administration (NALTDRA), reveals that said law in express
terms, provided for the abolition of existing positions. Thus, without need of any interpretation, the law mandates that
from the moment an implementing order is issued, all positions in the Land Registration Commission are deemed
non-existent. This, however, does not mean removal. Abolition of a position does not involve or mean removal for the
reason that removal implies that the post subsists and that one is merely separated therefrom. (Arao vs. Luspo, 20
SCRA 722 [1967]) After abolition, there is in law no occupant. Thus, there can be no tenure to speak of. It is in this
sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. (De la
Llana vs. Alba, 112 SCRA 294 [1982])

2. ID.; ID.; ID.; REORGANIZATION, VALID WHEN PURSUED IN GOOD FAITH; CASE AT BAR. — Nothing is better settled
in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers
from no infirmity. Two questions therefore arise: (1) was the abolition carried out by a legitimate body?; and (2) was it
done in good faith? There is no dispute over the authority to carry out a valid reorganization in any branch or agency
of the Government. Under Section 9, Article XVII of the 1973 Constitution. The power to reorganize is, however; not
absolute. We have held in Dario vs. Mison that reorganizations in this jurisdiction have been regarded as valid
provided they are pursued in good faith. This court has pronounced that if the newly created office has substantially
new, different or additional functions, duties or powers, so that it may be said in fact to create an office different from
the one abolished, even though it embraces all or some of the duties of the old office it will be considered as an
abolition of one office and the creation of a new or different one. The same is true if one office is abolished and its
duties, for reasons of economy are given to an existing officer or office. Executive Order No. 649 was enacted to
improve the services and better systematize the operation of the Land Registration Commission. A reorganization is
carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. To this end, the
requirement of Bar membership to qualify for key positions in the NALTDRA was imposed to meet the changing
circumstances and new development of the times. Private respondent Garcia who formerly held the position of Deputy
Register of Deeds II did not have such qualification. It is thus clear that she cannot hold any key position in the
NALTDRA, The additional qualification was not intended to remove her from office. Rather, it was a criterion imposed
concomitant with a valid reorganization measure.

3. ID.; ID.; ID.; THERE IS NO VESTED PROPERTY RIGHT TO BE RE-EMPLOYED IN A REORGANIZED OFFICE; CASE AT BAR.
— There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold it. Except
constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any
vested right in an office or its salary. None of the exceptions to this rule are obtaining in this case. To reiterate, the
position which private respondent Garcia would like to occupy anew was abolished pursuant to Executive Order No.
649, a valid reorganization measure. There is no vested property right to be re employed in a reorganized office. Not
being a member of the Bar, the minimum requirement to qualify under the reorganization law for permanent
appointment as Deputy Register of Deeds II, she cannot be reinstated to her former position without violating the
express mandate of the law.
DECISION

CAMPOS, JR., J p:

The sole issue for our consideration in this case is whether or not membership in the bar, which is the qualification
requirement prescribed for appointment to the position of Deputy Register of Deeds under Section 4 of Executive
Order No. 649 (Reorganizing the Land Registration Commission (LRC) into the National Land Titles and Deeds
Registration Administration or NALTDRA) should be required of and/or applied only to new applicants and not to
those who were already in the service of the LRC as deputy register of deeds at the time of the issuance and
implementation of the abovesaid Executive Order.

The facts, as succinctly stated in the Resolution ** of the Civil Service Commission, are as follows:

"The records show that in 1977, petitioner Garcia, a Bachelor of Laws graduate and a first grade civil service eligible
was appointed Deputy Register of Deeds VII under permanent status. Said position was later reclassified to Deputy
Register of Deeds III pursuant to PD 1529, to which position, petitioner was also appointed under permanent status up
to September 1984. She was for two years, more or less, designated as Acting Branch Register of Deeds of
Meycauayan, Bulacan. By virtue of Executive Order No. 649 (which took effect on February 9, 1981) which authorized
the restructuring of the Land Registration Commission to National Land Titles and Deeds Registration Administration
and regionalizing the Offices of the Registers therein, petitioner Garcia was issued an appointment as Deputy Register
of Deeds II on October 1, 1984, under temporary status, for not being a member of the Philippine Bar. She appealed to
the Secretary of Justice but her request was denied. Petitioner Garcia moved for reconsideration but her motion
remained unacted. On October 23, 1984, petitioner Garcia was administratively charged with Conduct Prejudicial to the
Best Interest of the Service. While said case was pending decision, her temporary appointment as such was renewed in
1985. In a Memorandum dated October 30, 1986, the then Minister, now Secretary, of Justice notified petitioner Garcia
of the termination of her services as Deputy Register of Deeds II on the ground that she was "receiving bribe money".
Said Memorandum of Termination which took effect on February 9, 1987, was the subject of an appeal to the Inter-
Agency Review Committee which in turn referred the appeal to the Merit Systems Protection Board (MSPB).

In its Order dated July 6, 1987, the MSPB dropped the appeal of petitioner Garcia on the ground that since the
termination of her services was due to the expiration of her temporary appointment, her separation is in order. Her
motion for reconsideration was denied on similar ground." 1

However, in its Resolution 2 dated June 30, 1988, the Civil Service Commission directed that private respondent Garcia
be restored to her position as Deputy Register of Deeds II or its equivalent in the NALTDRA. It held that "under the
vested right theory the new requirement of BAR membership to qualify for permanent appointment as Deputy
Register of Deeds II or higher as mandated under said Executive Order, would not apply to her (private respondent
Garcia) but only to the filling up of vacant lawyer positions on or after February 9, 1981, the date said Executive Order
took effect." 3 A fortiori, since private respondent Garcia had been holding the position of Deputy Register of Deeds II
from 1977 to September 1984, she should not be affected by the operation on February 1, 1981 of Executive Order
No. 649.

Petitioner NALTDRA filed the present petition to assail the validity of the above Resolution of the Civil Service
Commission. It contends that Sections 8 and 10 of Executive Order No. 649 abolished all existing positions in the LRC
and transferred their functions to the appropriate new offices created by said Executive Order, which newly created
offices required the issuance of new appointments to qualified office holders. Verily, Executive Order No. 649 applies
to private respondent Garcia, and not being a member of the Bar, she cannot be reinstated to her former position as
Deputy Register of Deeds II.

We find merit in the petition.

Executive Order No. 649 authorized the reorganization of the Land Registration Commission (LRC) into the National
Land Titles and Deeds Registration Administration (NALTDRA). It abolished all the positions in the now defunct LRC
and required new appointments to be issued to all employees of the NALTDRA.

The question of whether or not a law abolishes an office is one of legislative intent about which there can be no
controversy whatsoever if there is an explicit declaration in the law itself. 4 A closer examination of Executive Order No.
649 which authorized the reorganization of the Land Registration Commission (LRC) into the National Land Titles and
Deeds Registration Administration (NALTDRA), reveals that said law in express terms, provided for the abolition of
existing positions, to wit:

Sec. 8. Abolition of Existing Positions in the Land Registration Commission . . .

All structural units in the Land Registration Commission and in the registries of deeds, and all Positions therein shall
cease to exist from the date specified in the implementing order to be issued by the President pursuant to the
preceding paragraph. Their pertinent functions, applicable appropriations, records, equipment and property shall be
transferred to the appropriate staff or offices therein created. (Emphasis Supplied.)

Thus, without need of any interpretation, the law mandates that from the moment an implementing order is issued, all
positions in the Land Registration Commission are deemed non-existent. This, however, does not mean removal.
Abolition of a position does not involve or mean removal for the reason that removal implies that the post subsists
and that one is merely separated therefrom. 5 After abolition, there is in law no occupant. Thus, there can be no tenure
to speak of. It is in this sense that from the standpoint of strict law, the question of any impairment of security of
tenure does not arise. 6

Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if
done in good faith suffers from no infirmity. Two questions therefore arise: (1) was the abolition carried out by a
legitimate body?; and (2) was it done in good faith?

There is no dispute over the authority to carry out a valid reorganization in any branch or agency of the Government.
Under Section 9, Article XVII of the 1973 Constitution, the applicable law at that time:

Sec. 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office
until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose
appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the
appointment and qualifications of their successors.

The power to reorganize is, however; not absolute. We have held in Dario vs. Mison 7 that reorganizations in this
jurisdiction have been regarded as valid provided they are pursued in good faith. This court has pronounced 8 that if
the newly created office has substantially new, different or additional functions, duties or powers, so that it may be
said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of
the old office it will be considered as an abolition of one office and the creation of a new or different one. The same is
true if one office is abolished and its duties, for reasons of economy are given to an existing officer or office.

Executive Order No. 649 was enacted to improve the services and better systematize the operation of the Land
Registration Commission. 9 A reorganization is carried out in good faith if it is for the purpose of economy or to make
bureaucracy more efficient. 10 To this end, the requirement of Bar membership to qualify for key positions in the
NALTDRA was imposed to meet the changing circumstances and new development of the times. 11 Private
respondent Garcia who formerly held the position of Deputy Register of Deeds II did not have such qualification. It is
thus clear that she cannot hold any key position in the NALTDRA, The additional qualification was not intended to
remove her from office. Rather, it was a criterion imposed concomitant with a valid reorganization measure.

A final word, on the "vested right theory" advanced by respondent Civil Service Commission. There is no such thing as
a vested interest or an estate in an office, or even an absolute right to hold it. Except constitutional offices which
provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or
its salary. 12 None of the exceptions to this rule are obtaining in this case.

To reiterate, the position which private respondent Garcia would like to occupy anew was abolished pursuant to
Executive Order No. 649, a valid reorganization measure. There is no vested property right to be re employed in a
reorganized office. Not being a member of the Bar, the minimum requirement to qualify under the reorganization law
for permanent appointment as Deputy Register of Deeds II, she cannot be reinstated to her former position without
violating the express mandate of the law.
WHEREFORE, premises considered, We hereby GRANT the petition and SET ASIDE the questioned Resolution of the
Civil Service Commission reinstating private respondent to her former position as Deputy Register of Deeds II or its
equivalent in the National Land Titles and Deeds Registration Administration.

SO ORDERED.

Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ .,
concur.

Griño-Aquino, J ., is on leave.
G.R. No. 105111 July 3, 1992

RAMON L. LABO, Jr., petitioner,

vs.
COMMISSION ON ELECTIONS, and ROBERTO ORTEGA, respondents.

G.R. No. 105384 July 3, 1992

ROBERTO C. ORTEGA, petitioner,

vs.
COMMISSION ON ELECTIONS, and RAMON L. LABO, Jr., respondents.

BIDIN, J.:

This is the second time1 that this Court is called upon to rule on the citizenship of Ramon Labo, Jr., who, believing that
he is a Filipino citizen launched his candidacy for mayor of Baguio City in the last May 11, 1992 elections by filing his
certificate of candidacy on March 23, 1992.

Petitioner Roberto Ortega (GR No. 105384), on other hand, also filed his certificate of candidacy for the same office on
March 25, 1992.

Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega filed on March 26, 1992, a
disqualification proceeding against Labo before the Commission on Elections (Comelec), docketed as SPA No. 92-029,
seeking to cancel Labo's certificate of candidacy on the ground that Labo made a false representation when he stated
therein that he (Labo) is a "natural-born" citizen of the Philippines.

Summons in the disqualification case was issued by the Comelec on March 27, 1992 to petitioner Labo followed by a
telegram dated April 1, 1992, requiring him to file his Answer within three (3) non-extendible days but the latter failed
to respond.

On April 15, 1992, Ortega filed a motion to declare Labo in default for failure to file his Answer.

On April 24, 1992, the Comelec issued another order directing the Election Registrar of Baguio City to personally
deliver the summons. On May 4, 1992, the disqualification case was set for reception of evidence. At the said hearing,
Ortega presented the decision of this Court in Labo v. Commission on Elections (176 SCRA 1 [1989]) declaring Labo not
a citizen of the Philippines. Labo, on the other hand, though represented by counsel, did not present any evidence. It
was only on May 5, 1992 that petitioner submitted his Answer claiming Filipino citizenship.

On May 9, 1992, respondent Comelec issued the assailed resolution, the dispositive portion of which reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby resolves, to grant the
petition; respondent's (Labo's) certificate of candidacy is hereby DENIED due course and ordered
CANCELLED; the City Election Registrar of Baguio City is hereby directed to delete the name of the
respondent (Labo) from the list of candidates for City Mayor of Baguio City. (Rollo, pp. 47-48; GR No.
105111)

On the same date, Labo filed a motion to stay implementation of said resolution until after he shall have raised the
matter before this Court.

On May 10, 1992, respondent Comelec issued an Order which reads:

Acting on the "Urgent Ex-Parte Motion for Clarification", filed by respondent (Labo) on May 9,
1992, the Commission resolves that the decision promulgated on May 9, 1992 disqualifying respondent
Ramon L. Labo, Jr., shall become final and executory only after five (5) days from promulgation pursuant
to Rule 18, Section 13, Paragraph (b) of the Comelec Rules of Procedure.
 Accordingly, respondent (Labo) may still continue to be voted upon as candidate for City Mayor of
Baguio City on May 11, 1992 subject to the final outcome of this case in the event the issue is elevated
to the Supreme Court either on appeal or certiorari. (Rollo, p. 53; GR No. 105111; emphasis supplied)

On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the proclamation of Labo in the event he
wins in the elections for the City Mayor of Baguio. (Rollo, pp. 64-65; GR No. 105111)

On May 15, 1992, petitioner Labo filed the instant petition for review docketed as G.R. No. 105111 with prayer, among
others, for the issuance of a temporary restraining order to set aside the May 9, 1992 resolution of respondent
Comelec; to render judgment declaring him as a Filipino citizen; and to direct respondent Comelec to proceed with his
proclamation in the event he wins in the contested elections.

On the same date, or on May 15, 1992 petitioner Ortega filed before the Comelec an urgent motion for the
implementation of its May 9, 1992 resolution cancelling Labo's certificate of candidacy.

After an exchange of pleadings, respondent Comelec, in its resolution dated May 26, 1992, denied Ortega's motion in
view of the pending case (G.R. No. 105111) earlier filed by Labo of the same nature before this Court.

On June 1, 1992, Ortega filed a petition for mandamus docketed as G.R. No. 105384 praying for the implementation of
the Comelec's May 9, 1992 resolution.

Petitioner Ortega argues that respondent Comelec committed grave abuse of discretion when it refused to implement
its May 9, 1992 resolution notwithstanding the fact that said resolution disqualifying Ramon Labo has already become
final and executory.

After the parties have submitted their respective pleadings, the Court, on June 16, 1992, Resolved to consider the case
submitted for decision.

I. GR No. 105111

In essence, it is the contention of petitioner Labo that he is a Filipino citizen. Alleging lack of trial on the merits as well
as the lack of opportunity to be heard in Labo v. Commission on Elections (supra), it is the submission of petitioner
that he can prove his Filipino citizenship.

Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it was held that in proving expatriation, an
expatriating act an intent to relinquish citizenship must be proved by a preponderance of evidence.

Petitioner contends that no finding was made either by the Commission on Immigration or the Comelec as regards his
specific intent to renounce his Philippine citizenship.

Petitioner also faults the Comelec for the supposed abbreviated proceedings in SPA No. 92-029 which denied him
adequate opportunity to present a full-dress presentation of his case. Thus: a) only one (1) day was set for hearing of
the case, i.e., May 4, 1992; b) two days later, May 6, 1992 the hearing was set; c) instead of holding a hearing, the
Comelec issued the questioned resolution on May 9, 1992.

If only to refresh the mind of petitioner Labo, as well as that of his counsel, records disclose that summons were issued
by respondent Comelec as early as March 27, 1992 followed by a telegram on April 1, 1992. But petitioner chose to
ignore the same. Came April 15, 1992, petitioner Ortega filed a motion to declare petitioner Labo in default. Over-
extending him (Labo) the benefit of due process, respondent Comelec issued another order dated April 24, 1992, this
time directing the Acting City Election Registrar of Baguio to personally serve the summons. The alleged delay in the
resolution of SPA No. 92-029 can only be attributed to petitioner Labo and no one else. Thus, the respondent Comelec
in its resolution dated May 9, 1992 stated:

On May 4, 1992, the Acting Regional Election Registrar called this case for reception of evidence.
Surprisingly, while as of that date respondent had not yet filed his Answer, a lawyer appeared for him.
 The petitioner (Ortega) presented the certificate of candidacy of respondent Ramon L. Labo, Jr., which
contained in item 9 thereof the verified statement that respondent is a "natural-born" Filipino citizen.
To prove that respondent is not a Filipino citizen, petitioner submitted the decision of the Supreme
Court in "Ramon L. Labo, Jr., petitioner, v. Comelec, et al.," GR No. 86564, August 1, 1989, the
dispositive portion of which states:

WHEREFORE, petitioner Ramon J. (sic) Labo, Jr. is hereby declared NOT a citizen of the
Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio
City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of
Baguio City once this decision becomes final and executory.

No evidence was adduced for the respondent as in fact he had no Answer as of the hearing.

On May 5, 1992, respondent (Labo) filed his verified Answer, insisting that he is a Filipino citizen and
continue to maintain and preserve his Filipino citizenship; that he does not hold an Australian
citizenship; that the doctrine of res judicata does not apply in citizenship; and that "existing facts
support his continuous maintenance and holding of Philippine citizenship" and "supervening events
now preclude the application of the ruling in the Labo v. Comelec case and the respondent (Labo)
now hold and enjoys Philippine citizenship.

No evidence has been offered by respondent to show what these existing facts and supervening events
are to preclude the application of the Labo decision. (emphasis supplied)

The Commission is bound by the final declaration that respondent is not a Filipino citizen.
Consequently, respondent's verified statement in his certificate of candidacy that he is a "natural-
born" Filipino citizen is a false material representation." (Rollo, pp. 45-48; GR No. 105111)

Up to this moment, petitioner Labo still failed to submit a scintilla of proof to shore his claim before this Court that he
has indeed reacquired his Philippine citizenship.

Instead, petitioner relies in the US case of Vance v. Terrazas (supra). Suffice it to state that petitioner has already
pleaded Vance in his motion for reconsideration in Labo v. Comelec (supra; Rollo, p. 375). Having been previously
passed upon, the Court sees no pressing need to re-examine the same and make a lengthy dissertation thereon.

At any rate, the fact remains that he has not submitted in the instant case any evidence, if there be any, to prove his
reacquisition of Philippine citizenship either before this Court or the Comelec. On this score alone, We find no grave
abuse of discretion committed by respondent Comelec in cancelling his (Labo's) certificate of candidacy and declaring
that he is NOT a Filipino citizen pursuant to our ruling in the 1989 case of Labo v. Comelec (supra).

Petitioner Labo claims, however, that Sec. 722 of the Omnibus Election Code "operates as a legislatively mandated
special repatriation proceeding" and that it allows his proclamation as the winning candidate since the resolution
disqualifying him was not yet final at the time the election was held.

The Court finds petitioner Labo's strained argument quixotic and untenable. In the first place, Sec. 72 of the Omnibus
Election Code has already been repealed by Sec. 6 of RA No. 6646, to wit:

Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or the Commission shall continue with
the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (emphasis supplied)

A perusal of the above provision would readily disclose that the Comelec can legally suspend the proclamation of
petitioner Labo, his reception of the winning number of votes notwithstanding, especially so where, as in this case.
Labo failed to present any evidence before the Comelec to support his claim of reacquisition of Philippine citizenship.
Furthermore, we need only to reiterate what we have stated in Labo v. Comelec (supra), viz.,:

Under CA No. 63, as amended by P.D. No. 725, Philippine citizenship may be reacquired by a direct act
of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the
petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not
point to any judicial decree of naturalization or to any statute directly conferring Philippine citizenship
upon him. . . .

Petitioner Labo's status has not changed in the case at bar. To reiterate, he (Labo) was disqualified as a candidate for
being an alien. His election does not automatically restore his Philippine citizenship, the possession of which is an
indispensable requirement for holding public office (Sec. 39, Local Government Code).

Still, petitioner takes pains in raising a new argument not litigated before the respondent Comelec. Petitioner claims
that he has reacquired his Filipino citizenship by citing his application for reacquisition of Philippine citizenship filed
before the Office of the Solicitor General pursuant to PD 725 and Letter of Instruction No. 270 3 (Rollo, pp. 116-119;
G.R. No. 105111).

To date, however, and despite favorable recommendation by the Solicitor General, the Special Committee on
Naturalization had yet acted upon said application for repatriation. Indeed, such fact is even admitted petitioner. In the
absence of any official action or approval by the proper authorities, a mere application for repratriation, does not, and
cannot, amount to an automatic reacquisition of the applicant's Philippine citizenship.

II. GR No. 105384

Petitioner Ortega submits that since this Court did not issue a temporary restraining order as regards the May 9, 1992
resolution of respondent Comelec cancelling Labo's certificate of candidacy, said resolution has already become final
and executory. Ortega further posits the view that as a result of such finality, the candidate receiving the next highest
number of votes should be declared Mayor of Baguio City.

We agree with Ortega's first proposition.

At the time petitioner Labo filed his petition (GR No. 105111) on May 15, 1992, the May 9, 1992 resolution of
respondent Comelec cancelling his (Labo's) certificate of candidacy had already become final and executory a day
earlier, or on May 14, 1992, said resolution having been received by petitioner Labo on the same day it was
promulgated, i.e., May 9, 1992 and in the interim no restraining order was issued by this Court.

Thus, Sec. 78 of the Omnibus Election Code provides:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy —

xxx xxx xxx

(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy
thereof by the parties, be final and executory unless stayed by the Supreme Court. (emphasis supplied)

A similar provision is also found in Sec. 3, Rule 39 of the Comelec Rules of procedure, to wit:

Sec. 3. Decisions final after five days. — Decisions in

pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to
declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend
elections shall become final and executory after the lapse of five (5) days from their promulgation,
unless restrained by the Supreme Court. (emphasis supplied)

The resolution cancelling Labo's certificate of candidacy on the ground that he is not a Filipino citizen having acquired
finality on May 14, 1992 constrains Us to rule against his proclamation as Mayor of Baguio City.
To begin with, one of the qualifications of an elective official is that he must be a citizen of the Philippines. Thus, the
Local Government Code provides:

Sec. 39. Qualifications. — (a) An elective local official must be a citizen of the Philippines; a registered
voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect. (emphasis supplied)

Undoubtedly, petitioner Labo, not being a Filipino citizen, lacks the fundamental qualification for the contested office.
Philippine citizenship is an indispensable requirement for holding an elective office. As mandated by law: "An elective
local official must be a citizen of the Philippines."

The issue here is citizenship and/or Labo's alienage — the very essence which strikes at the very core of petitioner
Labo's qualification to assume the contested office, he being an alien and not a Filipino citizen. The fact that he was
elected by the majority of the electorate is of no moment. As we have held in Frivaldo v. Commission on Elections (174
SCRA 245 [1989]):

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

This brings us to the second issue raised by petitioner Ortega, i.e., whether the disqualification of petitioner Labo
entitles the candidate (Ortega) receiving the next highest number of votes to be proclaimed as the winning candidate
for mayor of Baguio City.

We hold in the negative. The disqualification of petitioner Labo does not necessarily entitle petitioner Ortega as the
candidate with the next highest number of votes to proclamation as the Mayor of Baguio City.

We make mention of petitioner Ortega because in his petition, he alleges that:

. . . the May 11, 1992 elections were held with both herein petitioner (Roberto Ortega) and respondent
LABO having been voted for the position of Mayor and unofficial results indicate that if the name of
respondent LABO were deleted from the list of candidates, herein petitioner (Ortega) will be entitled to
be proclaimed as Mayor-elect of Baguio City. (Rollo, p. 7, GR No. 105384; emphasis supplied)

and further prays this Court "to proclaim as the Mayor-elect of Baguio City the candidate who may have garnered the
most number of votes after the exclusion of the name of respondent candidate LABO." (Rollo, p. 15, Ibid.) Implicit,
therefore, is petitioner Ortega's desire to be proclaimed Mayor-elect of Baguio City.

As discussed hereunder, however, the Court finds Ortega's prayer devoid of merit.

While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains that
he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for the office
of mayor in the belief that he was then qualified to serve the people of Baguio City and his subsequent disqualification
does not make respondent Ortega the mayor-elect. This is the import of the recent case of Abella v. Comelec (201
SCRA 253 [1991]), wherein we held that:

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of
candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the
local elections of Feb. 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona
fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified
 candidate for the position of governor. Her votes was counted and she obtained the highest number of
votes. The net effect is that petitioner lost in the election. He was repudiated by the electorate. . . .
What matters is that in the event a candidate for an elected position who is voted for and who obtains
the highest number of votes is disqualified for not possessing the eligibility requirements at the time of
the election as provided by law, the candidate who obtains the second highest number of votes for the
same position cannot assume the vacated position. (emphasis supplied)

Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom. Like
Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not the choice of
the people of Baguio City.

Thus, while respondent Ortega (GR No. 105111) originally filed a disqualification case with the Comelec (docketed as
SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy, the same did not deter the people of
Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent Comelec to be voted upon,
the resolution for his disqualification having yet to attain the degree of finality (Sec. 78. Omnibus Election Code).

And in the earlier case of Labo v. Comelec (supra), We held:

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he was obviously not the choice of
the people of Baguio City.

The latest ruling of the Court in this issue is Santos v. Commission on Election, (137 SCRA 740) decided
in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his
winning rival, who was disqualified as a turncoat and considered a non-candidate, were all
disregarded as stray. In effect, the second placer won by default. That decision was supported by eight
members of the Court then (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la
Fuente, Alampay, and Aquino JJ., concurring) with three dissenting (Teehankee, acting C.J., Abad
Santos and Melencio-Herrera) and another two reserving their votes (Plana and Gutierrez, Jr.). One
was on official leave (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Santos (136 SCRA 435), which represents the more logical and democratic
rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes (23 Phil.
238) was supported by ten members of the Court (Gutierrez, Jr., J., ponente, with Teehankee, Abad
Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring),
without any dissent, . . . . There the Court held:

. . . it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that
they did not choose him.

Sound policy dictates that public elective offices are filled by those who have received
the highest number of votes cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one can be declared elected and
no measure can be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)

The fact that a candidate who obtained the highest number of votes is later declared
to be disqualified or not eligible for the office to which he was elected does not
necessarily entitle the candidate who obtained the second highest number of votes to
be declared the winner of the elective office. The votes cast for a dead, disqualified, or
non-eligible person may be valid to vote the winner into office or maintain him there.
However, in the absence of a statute which clearly asserts a contrary political and
 legislative policy on the matter, if the votes were cast in the sincere belief that that
candidate was alive, qualified, or eligible, they should not be treated as stray, void or
meaningless.

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate
receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office.

Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am. Dec. 149).

It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified
candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in
whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner
Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified
to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner
Labo turned out to be disqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can a
minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is
not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio
City; rollo, p. 109; GR No. 105111).

The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as
to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining
the next higher number of votes may be deemed elected.

But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that
petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such
fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May
10, 1992 to be voted for the office of the city mayor as its resolution dated May 9, 1992 denying due course to
petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case.

As aforesaid, the ineligibility of a candidate receiving majority votes does not entitle the candidate receiving the next
highest number of votes to be declared elected. Ortega failed to satisfy the necessary requisite of winning the election
either by a majority or mere plurality of votes sufficient to elevate him in public office as mayor of Baguio City. Having
lost in the election for mayor, petitioner Ortega was obviously not the choice of the people of Baguio City.

As a consequence of petitioners' ineligibility, a permanent vacancy in the contested office has occurred. This should
now be filled by the vice-mayor, in accordance with Sec. 44 of the Local Government Code, to wit:

Chapter 2. Vacancies and Succession

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor.
— (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the
vice-mayor concerned shall become the governor or mayor. . . . (emphasis supplied)

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Petitioners both being ineligible for the Office of
the City Mayor of Baguio City and in view of the vacancy created in said office, the vice-mayor elect of said city in the
May 11, 1992 elections is hereby declared Mayor of Baguio City after proclamation by the City Board of Canvassers.
No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Paras, Feliciano, Padilla, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and
Bellosillo, JJ., concur.
Separate Opinions

GUTIERREZ, JR., J.: concurring and dissenting

There is no need for me to discuss Mayor Ramon L. Labo, Jr.'s reacquisition of Philippine citizenship. In the first case
brought to us, Labo, Jr. v. COMELEC, 176 SCRA 1 [1989], I dissented from the resolution denying his motion for
reconsideration.

It is my view that since Mayor Labo never validly acquired Australian citizenship, he never lost his Philippine
citizenship. His oath of allegiance to Australia was null and void because he was not qualified to be an Australian
citizen. This is clear from the certification of Australia's Embassy officials. To me, a null and void act cannot have the
positive and serious effect of stripping a Filipino of his natural-born citizenship.

Labo's taking an oath as citizen of a foreign country was based on his marriage to a citizen of that country. It turns out,
however, that Labo's marriage was bigamous and void because his Australian wife had an existing valid marriage when
she tied the knot with him. Not being married to her, Labo could not become an Australian. Not being qualified to
become an Australian citizen, his oath of allegiance to that country was meaningless act. It should not deprive him of
his Philippine citizenship. I cannot believe that Mayor Labo gave up his citizenship in order to acquire a stateless
status.

I, however, concur in the Court's reiteration of the rule that it is the

vice-mayor elect who succeeds the disqualified mayor-elect and not the losing candidate for mayor.

I have to be consistent with my ponencia in Geronima v. Santos, 136 SCRA 435 [1985]. The Geronimo ruling is even
more applicable to this case because on May 11, 1992, the day of the elections, Labo was not yet disqualified. He was
allowed to vote and to be voted for. The COMELEC decision disqualifying him became final and executory only on May
14, 1992. In the meantime, the citizens of Baguio had already stated who was their choice for Mayor. He had already
been elected.

I would like to repeat some observations made in my dissent in the first Labo case:

xxx xxx xxx

I agree with the Court that the citizen of the Philippines must take pride in his status as such and
cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to
grant it to him. We love the Philippines; it is the land of our birth; it is the home of our people. The
emotions kindled by love of country cannot be described.

But precisely because of the inestimable value of Philippine citizenship, we should never declare a
Filipino as having lost his citizenship except upon the most compelling consideration.

Let us be realistic. There must be over two million Filipinos who are scattered all over the world
desperately trying to earn a living. They endure loneliness and separation from loved ones, bear with
racial discrimination, suffer rape and other forms of abuse, brave the perils of foreign cultures, and put
up with the failings of their own Government in looking after their welfare. Being in foreign countries,
most of them yearn for their homeland and realize what they have lost. Only now do they appreciate
what they used to take for granted.

If some of them may have been forced by circumstances to seemingly renounce their citizenship, let
us not summarily condemn them.

xxx xxx xxx

Citizenship is a political and civil right no less important than freedom of speech, liberty of abode, right against
unreasonable searches and seizures, and other basic guarantees of the Bill of Rights.
In deciding cases involving citizenship, I believe that the presumptions should be in favor of its retention and against
its loss. We apply this principle to cases involving civil liberties. We should also apply it to a sincere invocation of
Philippine citizenship. We should not lightly strip a person of his natural born status but should accord to him every
possible interpretation consistent with the exercise of a right that was vested in him from birth.

In view of the foregoing, I vote to GRANT the petition and to order the proclamation and assumption of office of
Baguio Mayor Ramon Labo, Jr.

Separate Opinions

GUTIERREZ, JR., J.: concurring and dissenting

There is no need for me to discuss Mayor Ramon L. Labo, Jr.'s reacquisition of Philippine citizenship. In the first case
brought to us, Labo, Jr. v. COMELEC, 176 SCRA 1 [1989], I dissented from the resolution denying his motion for
reconsideration.

It is my view that since Mayor Labo never validly acquired Australian citizenship, he never lost his Philippine
citizenship. His oath of allegiance to Australia was null and void because he was not qualified to be an Australian
citizen. This is clear from the certification of Australia's Embassy officials. To me, a null and void act cannot have the
positive and serious effect of stripping a Filipino of his natural-born citizenship.

Labo's taking an oath as citizen of a foreign country was based on his marriage to a citizen of that country. It turns out,
however, that Labo's marriage was bigamous and void because his Australian wife had an existing valid marriage when
she tied the knot with him. Not being married to her, Labo could not become an Australian. Not being qualified to
become an Australian citizen, his oath of allegiance to that country was meaningless act. It should not deprive him of
his Philippine citizenship. I cannot believe that Mayor Labo gave up his citizenship in order to acquire a stateless
status.

I, however, concur in the Court's reiteration of the rule that it is the

vice-mayor elect who succeeds the disqualified mayor-elect and not the losing candidate for mayor.

I have to be consistent with my ponencia in Geronima v. Santos, 136 SCRA 435 [1985]. The Geronimo ruling is even
more applicable to this case because on May 11, 1992, the day of the elections, Labo was not yet disqualified. He was
allowed to vote and to be voted for. The COMELEC decision disqualifying him became final and executory only on May
14, 1992. In the meantime, the citizens of Baguio had already stated who was their choice for Mayor. He had already
been elected.

I would like to repeat some observations made in my dissent in the first Labo case:

xxx xxx xxx

I agree with the Court that the citizen of the Philippines must take pride in his status as such and
cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to
grant it to him. We love the Philippines; it is the land of our birth; it is the home of our people. The
emotions kindled by love of country cannot be described.

But precisely because of the inestimable value of Philippine citizenship, we should never declare a
Filipino as having lost his citizenship except upon the most compelling consideration.

Let us be realistic. There must be over two million Filipinos who are scattered all over the world
desperately trying to earn a living. They endure loneliness and separation from loved ones, bear with
racial discrimination, suffer rape and other forms of abuse, brave the perils of foreign cultures, and put
up with the failings of their own Government in looking after their welfare. Being in foreign countries,
most of them yearn for their homeland and realize what they have lost. Only now do they appreciate
what they used to take for granted.
 If some of them may have been forced by circumstances to seemingly renounce their citizenship, let
us not summarily condemn them.

xxx xxx xxx

Citizenship is a political and civil right no less important than freedom of speech, liberty of abode, right against
unreasonable searches and seizures, and other basic guarantees of the Bill of Rights.

In deciding cases involving citizenship, I believe that the presumptions should be in favor of its retention and against
its loss. We apply this principle to cases involving civil liberties. We should also apply it to a sincere invocation of
Philippine citizenship. We should not lightly strip a person of his natural born status but should accord to him every
possible interpretation consistent with the exercise of a right that was vested in him from birth.

In view of the foregoing, I vote to GRANT the petition and to order the proclamation and assumption of office of
Baguio Mayor Ramon Labo, Jr.
G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

x-----------------------x

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with
extremely urgent application for an ex parte issuance of temporary restraining order/status quo ante order and/or writ
of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of the Commission on Elections
(COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3)
11 December 2015 Resolution of the COMELEC First Division; and ( 4) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued
without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish Church
of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody over petitioner
was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968,
Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-
Iloilo). In her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa
Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of San Juan City.
On 13 May 1974, the trial court granted their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations were made by
OCR-Iloilo on petitioner's foundling certificate reflecting the court decreed adoption, 2 the petitioner's adoptive mother
discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's adoption failed to
secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her
adoptive parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the lawyer's omission which
she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary
Grace Natividad Sonora Poe.4

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC Office
in San Juan City. On 13 December 1986, she received her COMELEC Voter's Identification Card for Precinct No. 196 in
Greenhills, San Juan, Metro Manila.5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the Department of Foreign
Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport and respectively
secured Philippine Passport Nos. L881511 and DD156616.7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines 8 but
she opted to continue her studies abroad and left for the United States of America (U.S.) in 1988. Petitioner graduated
in 1991 from Boston College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political
Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the
Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being with her husband who
was then based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29 July
1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. 12 Her two daughters
Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 and 5 June
2004, respectively. 13

On 18 October 2001, petitioner became a naturalized American citizen. 14

She obtained U.S. Passport No. 017037793
on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy for
President in the May 2004 elections. It was during this time that she gave birth to her youngest daughter Anika. She
returned to the U.S. with her two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her
father's deteriorating medical condition. 17 Her father slipped into a coma and eventually expired. The petitioner
stayed in the country until 3 February 2005 to take care of her father's funeral arrangements as well as to assist in the
settlement of his estate.18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest
desire to be with her grieving mother, the petitioner and her husband decided to move and reside permanently in the
Philippines sometime in the first quarter of 2005.19 The couple began preparing for their resettlement including
notification of their children's schools that they will be transferring to Philippine schools for the next
semester;20 coordination with property movers for the relocation of their household goods, furniture and cars from the
U.S. to the Philippines;21 and inquiry with Philippine authorities as to the proper procedure to be followed in bringing
their pet dog into the country.22 As early as 2004, the petitioner already quit her job in the U.S. 23

Finally, petitioner came home to the Philippines on 24 May 2005 24 and without delay, secured a Tax Identification
Number from the Bureau of Internal Revenue. Her three (3) children immediately followed25 while her husband was
forced to stay in the U.S. to complete pending projects as well as to arrange the sale of their family home there.26

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a
condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second half of
2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot were issued by the
Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006. 28 Meanwhile, her children of
school age began attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's
remaining household belongings.29 She travelled back to the Philippines on 11 March 2006. 30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and
abandonment of their address in the U.S.31 The family home was eventually sold on 27 April 2006. 32 Petitioner's
husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May 2006 and started working for a
major Philippine company in July 2006.33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City where they
built their family home34 and to this day, is where the couple and their children have been residing. 35 A Transfer
Certificate of Title covering said property was issued in the couple's name by the Register of Deeds of Quezon City on
1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act
(R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed with the
Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship together with petitions for derivative
citizenship on behalf of her three minor children on 10 July 2006. 37 As can be gathered from its 18 July 2006 Order, the
BI acted favorably on petitioner's petitions and declared that she is deemed to have reacquired her Philippine
citizenship while her children are considered as citizens of the Philippines. 38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She also secured
from the DFA a new Philippine Passport bearing the No. XX4731999.41 This passport was renewed on 18 March 2014
and she was issued Philippine Passport No. EC0588861 by the DFA. 42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and Television
Review and Classification Board (MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of
Renunciation of Allegiance to the United States of America and Renunciation of American Citizenship" before a notary
public in Pasig City on 20 October 2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said affidavit to the BI 46 and took her oath of
office as Chairperson of the MTRCB.47 From then on, petitioner stopped using her American passport. 48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation of
Renunciation of Nationality of the United States." 49 On that day, she accomplished a sworn questionnaire before the
U.S. Vice Consul wherein she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the
intent, among others, of relinquishing her American citizenship.50 In the same questionnaire, the petitioner stated that
she had resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from
May 2005 to present.51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United
States" effective 21 October 2010.52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013
Elections wherein she answered "6 years and 6 months" to the question "Period of residence in the Philippines before
May 13, 2013."53 Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her COC, the
petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005. 57 The petitioner attached to her
COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in
Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases
against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course or
cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second Division.59 She is
convinced that the COMELEC has jurisdiction over her petition. 60 Essentially, Elamparo's contention is that petitioner
committed material misrepresentation when she stated in her COC that she is a natural-born Filipino citizen and that
she is a resident of the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May
2016 Elections.61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on
account of the fact that she was a foundling.62 Elamparo claimed that international law does not confer natural-born
status and Filipino citizenship on foundlings.63 Following this line of reasoning, petitioner is not qualified to apply for
reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin
with.64 Even assuming arguendo that petitioner was a natural-born Filipino, she is deemed to have lost that status
when she became a naturalized American citizen.65 According to Elamparo, natural-born citizenship must be
continuous from birth.66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she
made in her 2012 COC for Senator wherein she indicated that she had resided in the country for only six ( 6) years and
six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified
to regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year residency requirement of the
Constitution as her residence could only be counted at the earliest from July 2006, when she reacquired Philippine
citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire lost Philippine
Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the Philippines. 67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo
warranto which could only be filed if Grace Poe wins in the Presidential elections, and that the Department of
Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically
admitted, would make false the statement in her COC that she is a natural-born Filipino citizen nor was there
any allegation that there was a willful or deliberate intent to misrepresent on her part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency
qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;

b. foundlings are presumed under international law to have been born of citizens of the place where
they are found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for
President in the May 9, 2016 Elections and that the same is in full force and effect and has not been
withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born status;

f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early
as May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No.
9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake,
not binding and should give way to evidence on her true date of reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide
a purely political question, that is, should she serve as the country's next leader. 68

After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed for
the purpose of running for the President of the Republic of the Philippines in the 9 May 2016 National and Local
Elections, contained material representations which are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel
Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President of the Republic of
the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe
Llamanzares is hereby CANCELLED.69

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En
Banc resolved in its 23 December 2015 Resolution by denying the same. 70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras
(Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated and raffled
to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed as SPA No. 15-
002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the Presidency.72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage,
particularly foundlings, cannot be considered natural-born Filipino citizens since blood relationship is determinative of
natural-born status.73 Tatad invoked the rule of statutory construction that what is not included is excluded. He averred
that the fact that foundlings were not expressly included in the categories of citizens in the 193 5 Constitution is
indicative of the framers' intent to exclude them.74 Therefore, the burden lies on petitioner to prove that she is a
natural-born citizen.75

Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings
have a nationality.76 According to Tatad, international conventions and treaties are not self-executory and that local
legislations are necessary in order to give effect to treaty obligations assumed by the Philippines. 77 He also stressed
that there is no standard state practice that automatically confers natural-born status to foundlings.78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine
citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and petitioner was not as she
was a foundling.79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year residency
requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only from the time she renounced
her American citizenship which was sometime in 2010 or 2011. 81 Additionally, Tatad questioned petitioner's lack of
intention to abandon her U.S. domicile as evinced by the fact that her husband stayed thereat and her frequent trips to
the U.S.82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez
alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-born citizen.83 He
advanced the view that former natural-born citizens who are repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their original status as natural-born citizens.84

He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the
Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against her. Valdez
rejected petitioner's claim that she could have validly reestablished her domicile in the Philippines prior to her
reacquisition of Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10) year
residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed as SPA No. 15-007 (DC),
limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President should be cancelled on
the ground that she did not possess the ten-year period of residency required for said candidacy and that she made
false entry in her COC when she stated that she is a legal resident of the Philippines for ten (10) years and eleven (11)
months by 9 May 2016.86 Contreras contended that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to reacquire Philippine citizenship was approved
by the BI.87 He asserted that petitioner's physical presence in the country before 18 July 2006 could not be valid
evidence of reacquisition of her Philippine domicile since she was then living here as an American citizen and as such,
she was governed by the Philippine immigration laws. 88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke
grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus Election
Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-born status of petitioner which
are not among the recognized grounds for the disqualification of a candidate to an elective office.90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her
ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive jurisdiction of the Presidential
Electoral Tribunal (PET) and not the COMELEC.92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents. 93 Otherwise stated, she
has a presumption in her favor that she is a natural-born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be
citizens of the country where they are found.94 Consequently, the petitioner is considered as a natural-born citizen of
the Philippines.95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the right
to reacquire her natural-born status.96 Moreover, the official acts of the Philippine Government enjoy the presumption
of regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen, her
appointment as MTRCB Chair and the issuance of the decree of adoption of San Juan RTC. 97 She believed that all these
acts reinforced her position that she is a natural-born citizen of the Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in the
Philippines as demonstrated by her children's resettlement and schooling in the country, purchase of a condominium
unit in San Juan City and the construction of their family home in Corinthian Hills. 99

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she
renounced her American citizenship as long as the three determinants for a change of domicile are complied
with.100 She reasoned out that there was no requirement that renunciation of foreign citizenship is a prerequisite for
the acquisition of a new domicile of choice.101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake made in
good faith.102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a
natural-born citizen, that she failed to complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she has been a resident of the Philippines for a
period of ten (10) years and eleven (11) months as of the day of the elections on 9 May 2016. The COMELEC First
Division concluded that she is not qualified for the elective position of President of the Republic of the Philippines. The
dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petitions and
cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective
position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and
National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23
December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent
prayer for the issuance of an ex parte temporary restraining order/status quo ante order and/or writ of preliminary
injunction. On 28 December 2015, temporary restraining orders were issued by the Court enjoining the COMELEC and
its representatives from implementing the assailed COMELEC Resolutions until further orders from the Court. The
Court also ordered the consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016.
Thereafter, oral arguments were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA No.
15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015
Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse of
discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9 May 2016
National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled "on
the exclusive ground" that she made in the certificate a false material representation. The exclusivity of the ground
should hedge in the discretion of the COMELEC and restrain it from going into the issue of the qualifications of the
candidate for the position, if, as in this case, such issue is yet undecided or undetermined by the proper authority. The
COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition
to other requirements, must present their platform or program of government; and accredit citizens'
arms of the Commission on Elections. Religious denominations and sects shall not be registered.
 Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and
adhere to this Constitution, or which are supported by any foreign government shall likewise be
refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute interference in national affairs, and, when
accepted, shall be an additional ground for the cancellation of their registration with the Commission,
in addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the
same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court
to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list system represented therein.
The senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President,
Senators and the Members of the House of Representatives was made clear by the Constitution. There is no such
provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,104 which was affirmatively
cited in the En Banc decision in Fermin v. COMELEC105 is our guide. The citation in Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:

Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an
act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise
of its rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution
withholds from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an
inquiry into qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings,
as already stated, are based on grounds specified in § 12 and §68 of the Omnibus Election Code and in §40 of the
Local Government Code and are for the purpose of barring an individual from becoming a candidate or from
continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the race either
from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed
in the Constitution or the statutes for holding public office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this
sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the
Law does not imply that he does not suffer from any of [the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the
importance of the opinion is in its statement that "the lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the
qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his
eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting
election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification is being sought. That is why it
is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has been
voted for, the votes in his favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his domicile,
may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated
in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence
was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character
proceedings relating to certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their certificates of candidacy
that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be
made after the election and only in the event they are elected. Only in cases involving charges of false representations
made in certificates of candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the
prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the
Constitution of the election, returns and qualifications of members of Congress of the President and Vice President, as
the case may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment
through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version of
Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as provided for
by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may
be disqualified from continuing as a candidate.107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a competent
court, guilty of, or found by the Commission to be suffering from any disqualification provided by law or the
Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or
Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for
determining before election the qualifications of candidate. Such that, as presently required, to disqualify a candidate
there must be a declaration by a final judgment of a competent court that the candidate sought to be disqualified "is
guilty of or found by the Commission to be suffering from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other. Both do
not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the qualification of a
candidate. The facts of qualification must beforehand be established in a prior proceeding before an authority
properly vested with jurisdiction. The prior determination of qualification may be by statute, by executive order or by a
judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification
"provided by law or the Constitution," neither can the certificate of candidacy be cancelled or denied due course on
grounds of false representations regarding his or her qualifications, without a prior authoritative finding that he or she
is not qualified, such prior authority being the necessary measure by which the falsity of the representation can be
found. The only exception that can be conceded are self-evident facts of unquestioned or unquestionable veracity and
judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the falsity of representation
can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this case,
alleged false representations regarding the candidate's citizenship and residence, forced the COMELEC to rule
essentially that since foundlings108 are not mentioned in the enumeration of citizens under the 1935
Constitution,109 they then cannot be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that
she is a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying
that it cannot rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has the burden to present evidence to prove her
natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in Philippine
Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation. 110 That said, there is more than
sufficient evider1ce that petitioner has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the
burden of proof was on private respondents to show that petitioner is not a Filipino citizen. The private respondents
should have shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not shift the
burden to her because such status did not exclude the possibility that her parents were Filipinos, especially as in this
case where there is a high probability, if not certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents are
Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce belief in its
existence or no-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable
degree to establish the probability of improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)111 that from 1965 to 1975,
the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the
country was 10,558,278. The statistical probability that any child born in the Philippines in that decade is natural-born
Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo Province for 1960 and 1970, also from
the PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were
Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for
the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners
or 99.68%. In the same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were
270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were 245,740 Filipino males as
against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim
admitted, during the oral arguments, that at the time petitioner was found in 1968, the majority of the population in
Iloilo was Filipino.112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an
infant in a Roman Catholic Church in Iloilo City.1âwphi1 She also has typical Filipino features: height, flat nasal bridge,
straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of nature and the
ordinary habits of life.113 All of the foregoing evidence, that a person with typical Filipino features is abandoned in
Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there
would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than
ample probability if not statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on
which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor
General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant
and leave their newborn babies behind. We do not face a situation where the probability is such that every foundling
would have a 50% chance of being a Filipino and a 50% chance of being a foreigner. We need to frame our questions
properly. What are the chances that the parents of anyone born in the Philippines would be foreigners? Almost zero.
What are the chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046 children
born in the Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign parents. Thus, for
that sample period, the ratio of non-Filipino children to natural born Filipino children is 1:1357. This means that the
statistical probability that any child born in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of Filipinos
born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661. This means that the
statistical probability that any child born in the Philippines on that decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the
statistical probability that a child born in the Philippines would be a natural born Filipino will not be affected by
whether or not the parents are known. If at all, the likelihood that a foundling would have a Filipino parent might even
be higher than 99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not imagine
foreigners abandoning their children here in the Philippines thinking those infants would have better economic
opportunities or believing that this country is a tropical paradise suitable for raising abandoned children. I certainly
doubt whether a foreign couple has ever considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical
chance that one among the thousands of these foundlings might be the child of not just one, but two, foreigners is
downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given the statistical certainty - 99.9% -
that any child born in the Philippines would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason why this Honorable Court should use an improbable
hypothetical to sacrifice the fundamental political rights of an entire class of human beings. Your Honor, constitutional
interpretation and the use of common sense are not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent
as to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence
and ambiguity in the enumeration with respect to foundlings, there is a need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal Revenue,114 this Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction
that the intent of the framers of the organic law and of the people adopting it should be given effect. The
primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose
of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the Constitution were guided mainly by the explanation offered by the framers. 115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention
show that the framers intended foundlings to be covered by the enumeration. The following exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children of a
foreign father and a Filipino mother not recognized by the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural
children or to any kind of illegitimate children?

Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate
children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I refer to the
Spanish Code wherein all children of unknown parentage born in Spanish territory are considered Spaniards, because
the presumption is that a child of unknown parentage is the son of a Spaniard. This may be applied in the Philippines
in that a child of unknown parentage born in the Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown
parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner who
does not recognize the child. Their parentage is not unknown and I think those of overseas Filipino mother and father
[whom the latter] does not recognize, should also be considered as Filipinos.
President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not] refer to
them. By international law the principle that children or people born in a country of unknown parents are citizens in this
nation is recognized, and it is not necessary to include a provision on the subject exhaustively. 116

Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that
persons of "unknown parentage" are not citizens but only because their number was not enough to merit specific
mention. Such was the account,117 cited by petitioner, of delegate and constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens
the illegitimate children with a foreign father of a mother who was a citizen of the Philippines, and also
foundlings; but this amendment was defeated primarily because the Convention believed that the cases,
being too few to warrant the inclusion of a provision in the Constitution to apply to them, should be governed
by statutory legislation. Moreover, it was believed that the rules of international law were already clear to the
effect that illegitimate children followed the citizenship of the mother, and that foundlings followed the
nationality of the place where they were found, thereby making unnecessary the inclusion in the Constitution
of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual and
explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence is by saying that it
was the view of Montinola and Roxas which prevailed that there is no more need to expressly declare foundlings as
Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can
constitutionalize rules based on assumptions that are imperfect or even wrong. They can even overturn existing rules.
This is basic. What matters here is that Montinola and Roxas were able to convince their colleagues in the convention
that there is no more need to expressly declare foundlings as Filipinos because they are already impliedly so
recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of
redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the
1935 Constitution. This inclusive policy is carried over into the 1973 and 1987 Constitution. It is appropriate to invoke a
famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently
vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane society," that "they
were reasonable patriots and that it would be unfair to impute upon them a discriminatory intent against foundlings."
He exhorts that, given the grave implications of the argument that foundlings are not natural-born Filipinos, the Court
must search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the
status of Filipinos. The burden is on those who wish to use the constitution to discriminate against foundlings to show
that the constitution really intended to take this path to the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all three
Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. Of
special consideration are several provisions in the present charter: Article II, Section 11 which provides that the "State
values the dignity of every human person and guarantees full respect for human rights," Article XIII, Section 1 which
mandates Congress to "give highest priority to the enactment of measures that protect and enhance the right of all
the people to human dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3 which
requires the State to defend the "right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development." Certainly, these provisions contradict an intent to discriminate against foundlings on account of their
unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that
adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted.
The most basic of such laws is Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties,
status, conditions, legal capacity of persons are binding on citizens of the Philippines even though living abroad."
Adoption deals with status, and a Philippine adoption court will have jurisdiction only if the adoptee is a Filipino.
In Ellis and Ellis v. Republic,119 a child left by an unidentified mother was sought to be adopted by aliens. This Court
said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has
jurisdiction, not only over the subject matter of the case and over the parties, but also over the res, which is the
personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory that
jurisdiction over the status of a natural person is determined by the latter's nationality. Pursuant to this theory, we
have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but not over the status of the
petitioners, who are foreigners.120 (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country
Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country Adoption Act of 1995"),
R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule
on Adoption," all expressly refer to "Filipino children" and include foundlings as among Filipino children who may be
adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling
certificate under these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship
which make the foundling a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born
citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect
their Philippine citizenship." In the first place, "having to perform an act" means that the act must be personally done
by the citizen. In this instance, the determination of foundling status is done not by the child but by the
authorities.121 Secondly, the object of the process is the determination of the whereabouts of the parents, not the
citizenship of the child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire
Philippine citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under the
1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a
Foundling Certificate issued in her favor.122 The Decree of Adoption issued on 13 May 1974, which approved
petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife,
Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's status as a foundling. 123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become
part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that
an international law be transformed into a domestic law through a constitutional mechanism such as local
legislation.124 On the other hand, generally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
Generally accepted principles of international law include international custom as evidence of a general practice
accepted as law, and general principles of law recognized by civilized nations.125 International customary rules are
accepted as binding as a result from the combination of two elements: the established, widespread, and consistent
practice on the part of States; and a psychological element known as the opinionjuris sive necessitates (opinion as to
law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.126 "General principles of law recognized by civilized nations" are principles
"established by a process of reasoning" or judicial logic, based on principles which are "basic to legal systems
generally,"127 such as "general principles of equity, i.e., the general principles of fairness and justice," and the "general
principle against discrimination" which is embodied in the "Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation." 128 These are the same core principles which underlie the
Philippine Constitution itself, as embodied in the due process and equal protection clauses of the Bill of Rights. 129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally accepted
principles of international law and binding on the State. 130 Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC
imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to
acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their
obligations under the relevant international instruments in this field, in particular where the child would otherwise be
stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24
thereof provide for the right of every child "to acquire a nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin,
property or birth, the right, to such measures of protection as are required by his status as a minor, on the part of his
family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth and
ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished
by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139,
both of which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of
international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws under which a foundling is presumed to have the "nationality of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is
established, its nationality shall be determined by the rules applicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was
found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in
Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:
 Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to
have been born within the territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of
Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15(1) ofwhich 131 effectively
affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction
of Statelessness" merely "gives effect" to Article 15(1) of the UDHR. 132 In Razon v. Tagitis, 133 this Court noted that the
Philippines had not signed or ratified the "International Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said convention was
nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise notable for
declaring the ban as a generally accepted principle of international law although the convention had been ratified by
only sixteen states and had not even come into force and which needed the ratification of a minimum of twenty states.
Additionally, as petitioner points out, the Court was content with the practice of international and regional state
organs, regional state practice in Latin America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134 where
only four countries had "either ratified or acceded to"135 the 1966 "Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters" when the case was decided in 2005. The Court also pointed out
that that nine member countries of the European Common Market had acceded to the Judgments Convention. The
Court also cited U.S. laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen
countries were considered and yet, there was pronouncement that recognition of foreign judgments was widespread
practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of
international law" are based not only on international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity
and the policy against discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"136 support the notion that the right against enforced disappearances and the
recognition of foreign judgments, were correctly considered as "generally accepted principles of international law"
under the incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe have passed
legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus sanguinis regime. Of
the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories
to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189
countries surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the practice
of jus sanguinis countries, show that it is a generally accepted principle of international law to presume foundlings as
having been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In
particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to "Filipino children." In all
of them, foundlings are among the Filipino children who could be adopted. Likewise, it has been pointed that the DFA
issues passports to foundlings. Passports are by law, issued only to citizens. This shows that even the executive
department, acting through the DFA, considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational
and reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of natural-born
citizenship of foundlings stems from the presumption that their parents are nationals of the Philippines. As the
empirical data provided by the PSA show, that presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were
designed to address the plight of a defenseless class which suffers from a misfortune not of their own making. We
cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the
community of nations. The Solicitor General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were
drafted because the world community is concerned that the situation of foundlings renders them legally invisible. It
would be tragically ironic if this Honorable Court ended up using the international instruments which seek to protect
and uplift foundlings a tool to deny them political status or to accord them second-class citizenship.138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not
result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must perform
an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general
and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost
his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally
a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born
Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-Condon
v. COMELEC141 where we described it as an "abbreviated repatriation process that restores one's Filipino citizenship x x
x." Also included is Parreno v. Commission on Audit,142 which cited Tabasa v. Court of Appeals,143 where we said that
"[t]he repatriation of the former Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission
on Audit144 is categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his
natural-born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born
citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously
passed in line with Congress' sole prerogative to determine how citizenship may be lost or reacquired. Congress saw it
fit to decree that natural-born citizenship may be reacquired even if it had been once lost. It is not for the COMELEC to
disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already rejected in Bengson III
v. HRET145 where the phrase "from birth" was clarified to mean at the time of birth: "A person who at the time of his
birth, is a citizen of a particular country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or
perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under
the 1987 Constitution: natural-born citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes
of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is
not a naturalized Filipino, ie., did not have to undergo the process of naturalization to obtain Philippine citizenship,
necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for
persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship
and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by
law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of
Representatives.146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit a
doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of Appeals and
Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the condonation doctrine, we cautioned that it "should be
prospective in application for the reason that judicial decisions applying or interpreting the laws of the Constitution,
until reversed, shall form part of the legal system of the Philippines." This Court also said that "while the future may
ultimately uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to its abandonment.
Consequently, the people's reliance thereupon should be respected." 148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put in
the spaces for "born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive parents, and
this misled the BI to presume that she was a natural-born Filipino. It has been contended that the data required were
the names of her biological parents which are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to sever
all legal ties between the biological parents and the adoptee, except when the biological parent is the spouse of the
adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an amended birth certificate "attesting to the fact that
the adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation that it is an amended
issue."150 That law also requires that "[a]ll records, books, and papers relating to the adoption cases in the files of the
court, the Department [of Social Welfare and Development], or any other agency or institution participating in the
adoption proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to state that her
adoptive parents were her birth parents as that was what would be stated in her birth certificate anyway. And given the
policy of strict confidentiality of adoption records, petitioner was not obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for
cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole process undertaken by
COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material
representation when she stated in her COC that she has before and until 9 May 2016 been a resident of the Philippines
for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before
the 2016 elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day of
the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a resident of the
Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested information of "Period of Residence in
the Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which according to her pleadings
in these cases corresponds to a beginning date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are three
requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to remain there;
and 3. an intention to abandon the old domicile.152 To successfully effect a change of domicile, one must demonstrate
an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence
and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically
be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must
be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen
for the new domicile must be actual.153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and
relocated to the Philippines for good. These evidence include petitioner's former U.S. passport showing her arrival on
24 May 2005 and her return to the Philippines every time she travelled abroad; e-mail correspondences starting in
March 2005 to September 2006 with a freight company to arrange for the shipment of their household items weighing
about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship
their dog to the Philippines; school records of her children showing enrollment in Philippine schools starting June 2005
and for succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium and parking
slot issued in February 2006 and their corresponding tax declarations issued in April 2006; receipts dated 23 February
2005 from the Salvation Army in the U.S. acknowledging donation of items from petitioner's family; March 2006 e-mail
to the U.S. Postal Service confirming request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted
to the U.S. Embassy where petitioner indicated that she had been a Philippine resident since May 2005; affidavit from
Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed with affiant
until the condominium was purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and to
sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its Resolution
in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005. At
the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first two requisites, namely,
physical presence and animus manendi, but maintained there was no animus non-revertendi.154 The COMELEC
disregarded the import of all the evidence presented by petitioner on the basis of the position that the earliest date
that petitioner could have started residence in the Philippines was in July 2006 when her application under R.A. No.
9225 was approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents also added Reyes v.
COMELEC.158 Respondents contend that these cases decree that the stay of an alien former Filipino cannot be counted
until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since petitioner was still an American (without any resident visa) until her
reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v.
COMELEC,159 the only evidence presented was a community tax certificate secured by the candidate and his
declaration that he would be running in the elections. Japzon v. COMELEC160 did not involve a candidate who wanted
to count residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence is
distinct from citizenship, the issue there was whether the candidate's acts after reacquisition sufficed to establish
residence. In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad and that he only
visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen who
had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was
disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as provincial
officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient to prove her one-
year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court
had no choice but to hold that residence could be counted only from acquisition of a permanent resident visa or from
reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and taken together leads
to no other conclusion that she decided to permanently abandon her U.S. residence (selling the house, taking the
children from U.S. schools, getting quotes from the freight company, notifying the U.S. Post Office of the
abandonment of their address in the U.S., donating excess items to the Salvation Army, her husband resigning from
U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines and actually re-
established her residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying
property here, constructing a residence here, returning to the Philippines after all trips abroad, her husband getting
employed here). Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's
actual continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was
for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as
a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as temporary visitors who must leave after one
year. Included in the law is a former Filipino who has been naturalized abroad and "comes or returns to the
Philippines." 163 The law institutes a balikbayan program "providing the opportunity to avail of the necessary training
to enable the balikbayan to become economically self-reliant members of society upon their return to the
country"164 in line with the government's "reintegration program."165 Obviously, balikbayans are not ordinary
transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would be
an unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his life and reintegrate himself into the community before
he attends to the necessary formal and legal requirements of repatriation. And that is exactly what petitioner did - she
reestablished life here by enrolling her children and buying property while awaiting the return of her husband and
then applying for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and
overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented. There is no
judicial precedent that comes close to the facts of residence of petitioner. There is no indication in Coquilla v.
COMELEC,166 and the other cases cited by the respondents that the Court intended to have its rulings there apply to a
situation where the facts are different. Surely, the issue of residence has been decided particularly on the facts-of-the
case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that
petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was false
because she put six ( 6) years and six ( 6) months as "period of residence before May 13, 2013" in her 2012 COC for
Senator. Thus, according to the COMELEC, she started being a Philippine resident only in November 2006. In doing so,
the COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the
period of residence as of the day she submitted that COC in 2012. She said that she reckoned residency from April-
May 2006 which was the period when the U.S. house was sold and her husband returned to the Philippines. In that
regard, she was advised by her lawyers in 2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as
inquiring about residence as of the time she submitted the COC, is bolstered by the change which the COMELEC itself
introduced in the 2015 COC which is now "period of residence in the Philippines up to the day before May 09, 2016."
The COMELEC would not have revised the query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of her
husband is plausible given the evidence that she had returned a year before. Such evidence, to repeat, would include
her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive admission against
petitioner. It could be given in evidence against her, yes, but it was by no means conclusive. There is precedent after all
where a candidate's mistake as to period of residence made in a COC was overcome by evidence. In Romualdez-Marcos
v. COMELEC,167 the candidate mistakenly put seven (7) months as her period of residence where the required period
was a minimum of one year. We said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which
ought to be decisive in determining whether or not an individual has satisfied the constitutions residency qualification
requirement." The COMELEC ought to have looked at the evidence presented and see if petitioner was telling the truth
that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it would have seen that the 2012
COC and the 2015 COC both correctly stated the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here on
24 May 2005 not because it was false, but only because COMELEC took the position that domicile could be established
only from petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that in
reality, petitioner had returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to
have been a resident for ten (10) years and eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for quo
warranto had been filed against her with the SET as early as August 2015. The event from which the COMELEC pegged
the commencement of residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to
repeat, for purposes of her senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted that
this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance.
Petitioner appears to have answered the issue immediately, also in the press. Respondents have not disputed
petitioner's evidence on this point. From that time therefore when Rep. Tiangco discussed it in the media, the stated
period of residence in the 2012 COC and the circumstances that surrounded the statement were already matters of
public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified
Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC when she put in six
( 6) years and six ( 6) months as she misunderstood the question and could have truthfully indicated a longer
period. Her answer in the SET case was a matter of public record. Therefore, when petitioner accomplished her COC for
President on 15 October 2015, she could not be said to have been attempting to hide her erroneous statement in her
2012 COC for Senator which was expressly mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and
have it covered by the 2015 representation. Petitioner, moreover, has on her side this Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute material
misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC. Further, as
already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact (eligibility and
qualifications for elective office), but should evince a deliberate intent to mislead, misinform or hide a fact which would
otherwise render a candidate ineligible. It must be made with an intention to deceive the electorate as to one's
qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of
which can evince animus manendi to the Philippines and animus non revertedi to the United States of America. The
veracity of the events of coming and staying home was as much as dismissed as inconsequential, the focus having
been fixed at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts to a
declaration and therefore an admission that her residence in the Philippines only commence sometime in November
2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for President." This
conclusion, as already shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of
the person that determines residence for purposes of compliance with the constitutional requirement of residency for
election as President. It ignores the easily researched matter that cases on questions of residency have been decided
favorably for the candidate on the basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why petitioner cannot be
bound by her declaration in her COC for Senator which declaration was not even considered by the SET as an issue
against her eligibility for Senator. When petitioner made the declaration in her COC for Senator that she has been a
resident for a period of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was satisfied by her declared years of residence. It
was uncontested during the oral arguments before us that at the time the declaration for Senator was made, petitioner
did not have as yet any intention to vie for the Presidency in 2016 and that the general public was never made aware
by petitioner, by word or action, that she would run for President in 2016. Presidential candidacy has a length-of-
residence different from that of a senatorial candidacy. There are facts of residence other than that which was
mentioned in the COC for Senator. Such other facts of residence have never been proven to be false, and these, to
repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA to finish
pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon
School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was enrolled in Learning
Connection in San Juan in 2007, when she was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San
Juan. [Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian Hills was
completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled
[petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live
Birth indicating [petitioner's] new name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's
remaining household belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of
their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006
and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their
family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive
ground of false representation, to consider no other date than that mentioned by petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the
Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly diseased with
grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local
Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-002
(DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-
007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and
SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the petitions and
cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position
of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National
Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second
Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified Motion
for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11
December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First
Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
is DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
 See Concurring Opinion
MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion Please see Concurring Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

Please see Separate Dissenting Opinion See Dissenting opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

I join J. Caguioa's Opinion

LUCAS P. BERSAMIN
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

Pls. see Dissenting Opinion

JOSE CATRAL MENDOZA
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

(I concur with the Dissenting Opinion of Justice

See Dissenting Opinion
Perlas-Bernabe)
ESTELA M. PERLAS-BERNABE
BIENVENIDO L. REYES
Associate Justice
Associate Justice

See Separate Concurring Opinion See Concurring Opinion

MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice

See Concurring Opinion

ALFREDO BENJAMIN S. CAGUIOA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice
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.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both
seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July
25, 1987. The pertinent provisions of the assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition
to his primary position, hold not more than two positions in the government and government corporations
and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc
bodies or committees, or to boards, councils or bodies of which the President is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the
Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish
the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold
more than two positions other than his primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a
secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution,2 which
provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or
be financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet,
along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 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."7 Article IX-B, Section 7, par. (2)8 provides:

Sec. 7. . . . . .

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

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated
and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988,10 being the first official
construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-
XB of the Constitution, involving the same subject of appointments or designations of an appointive executive official
to positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order
No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting
that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed
by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-
officio are allowed by the primary functions of the public official, but only to the holding of multiple positions which
are not related to or necessarily included in the position of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to
petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against
holding any other office or employment in Government are those provided in the Constitution, namely: (1) The Vice-
President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the
Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

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

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive
officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless
otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office
or employment in the Government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus,
it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished
by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the
light of the history of the times, and the condition and circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and
the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to
that reason and calculated to effect that purpose. 11

The practice of designating members of the Cabinet, their deputies and assistants as members of the governing
bodies or boards of various government agencies and instrumentalities, including government-owned and controlled
corporations, became prevalent during the time legislative powers in this country were exercised by former President
Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations created by presidential decrees and other
modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of
office. Most of these instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to
the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-
Owned and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a
"Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations as of December 31,
1983."

Particularly odious and revolting to the people's sense of propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two
(22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should
draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by
Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987
Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous
practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive
compensation therefrom would be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition
against the holding of multiple offices or employment in the government subsuming both elective and appointive
public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in
so far as holding other offices or employment in the government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public officials or employees from holding other offices or employment.
Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or
employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active
service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-
owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by
respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition
pertains to an office or employment in the government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-
President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is
absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing
prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other
public officials or employees such as the Members of Congress, members of the civil service in general and members
of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a
class by itself and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We
actually have to be stricter with the President and the members of the Cabinet because they exercise more powers
and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their
case."14

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions, members
of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In
other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the
manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment
in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of
the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution
inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed
to hold other office or employment when so authorized by the Constitution, but who as an elective public official
under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any
public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this
Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the
Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President shall not nave been
chosen or fails to qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of the instrument. 17 Sections bearing
on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the
Constitution18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can
be made to stand together.19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation.21 The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances
provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein
without additional compensation in an ex-officio capacity as provided by law and as required22 by the primary
functions of said officials' office. The reason is that these posts do no comprise "any other office" within the
contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on
said officials.23 To characterize these posts otherwise would lead to absurd consequences, among which are: The
President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense,
Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for
lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair
these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of money, banking and credit. 25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as
a continuously operative charter of government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the office." 27 An ex-officio member of a board is one who is
a member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by
express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board
of the Philippine Ports Authority,29 and the Light Rail Transit Authority.30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need only be designated by the respective department heads.
With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they
must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a
previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that
office. The same is true with respect to the representatives from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so designated merely perform duties in the Board in addition to
those already performed under their original appointments."32

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be
closely related to, but must be required by the official's primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board,
and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and
the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member
of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which
confer on the cabinet official management functions and/or monetary compensation, such as but not limited to
chairmanships or directorships in government-owned or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among
the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing
laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the
power vested on the President and his alter egos, the Cabinet members, to have control of all the executive
departments, bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties
and functions being assigned to the President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their
primary functions, they would be supervision, thereby deprived of the means for control and resulting in an unwieldy
and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by
the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law,
without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his principal office. It should be obvious
that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary function of his principal office in defining policy in
monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore,
he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an
allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is
prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add
to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless
required by the functions of his position,"36 express reference to certain high-ranking appointive public officials like
members of the Cabinet were made.37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod
pointed out that there are instances when although not required by current law, membership of certain high-ranking
executive officials in other offices and corporations is necessary by reason of said officials' primary functions. The
example given by Commissioner Monsod was the Minister of Trade and Industry. 38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the official may be imposed upon him without offending
the constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this
exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in
the plenary session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531
which was the proposed article on General Provisions.39 At that time, the article on the Civil Service Commission had
been approved on third reading on July 22, 1986,40 while the article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986.41 It was only
after the draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of
the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by
the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional guidelines in the
absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion
was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general
rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific
prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions
provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the
Civil Service Commission.

That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article
IX-B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to
"allowed," by the primary functions may be considered as not constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other
guides fail42 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.
G.R. No. 206666 January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,

ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both of the Revised Rules of
Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of the writ of certiorari annulling
and setting aside the April 1, 20131 and April 23, 20132 Resolutions of the Commission on Elections (COMELEC),
Second Division and En bane, respectively, in SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito
Estrada" for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction; and (2) a
Petition-in-Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to be declared the 2013 winning candidate for
Mayor of the City of Manila in view of private respondent former President Joseph Ejercito Estrada’s (former President
Estrada) disqualification to run for and hold public office.

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President of the Republic of
the Philippines, for the crime of plunder in Criminal Case No. 26558, entitled "People of the Philippines v. Joseph
Ejercito Estrada, et al." The dispositive part of the graft court’s decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding the
accused, Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER,
defined in and penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the prosecution to
prove and establish their guilt beyond reasonable doubt, the Court finds the accused Jose "Jinggoy" Estrada and Atty.
Edward S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by Republic Act No. 7659, is
Reclusion Perpetua to Death. There being no aggravating or mitigating circumstances, however, the lesser penalty
shall be applied in accordance with Article 63 of the Revised Penal Code. Accordingly, the accused Former President
Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of
civil interdiction during the period of sentence and perpetual absolute disqualification.

The period within which accused Former President Joseph Ejercito Estrada has been under detention shall be credited
to him in full as long as he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court
hereby declares the forfeiture in favor of the government of the following:

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One Thousand Pesos
(₱545,291,000.00), with interest and income earned, inclusive of the amount of Two Hundred Million Pesos
(₱200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (₱189,000,000.00), inclusive of interests and
income earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as "Boracay Mansion" located at #100 11th Street,
New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are hereby ordered cancelled
and released to the said accused or their duly authorized representatives upon presentation of the original receipt
evidencing payment thereof and subject to the usual accounting and auditing procedures. Likewise, the hold-
departure orders issued against the said accused are hereby recalled and declared functus oficio. 4

On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President Arroyo) extended
executive clemency, by way of pardon, to former President Estrada. The full text of said pardon states:

MALACAÑAN PALACE
MANILA

By the President of the Philippines

PARDON

WHEREAS, this Administration has a policy of releasing inmates who have reached the age of seventy (70),

WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive
clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty of
Reclusion Perpetua. He is hereby restored to his civil and political rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes issued by
the Sandiganbayan in pursuance hereof, except for the bank account(s) he owned before his tenure as President.

Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.

Given under my hand at the City of Manila, this 25th Day of October, in the year of Our Lord, two thousand and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)

Acting Executive Secretary5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted" 6 the pardon by affixing his
signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy 7 for the position of President. During
that time, his candidacy earned three oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due
Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a
petition for "Disqualification as Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No. 09-104
(DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from Running as President due to Constitutional
Disqualification and Creating Confusion to the Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate
Resolutions8 dated January 20, 2010 by the COMELEC, Second Division, however, all three petitions were effectively
dismissed on the uniform grounds that (i) the Constitutional proscription on reelection applies to a sitting president;
and (ii) the pardon granted to former President Estrada by former President Arroyo restored the former’s right to vote
and be voted for a public office. The subsequent motions for reconsideration thereto were denied by the COMELEC En
banc.

After the conduct of the May 10, 2010 synchronized elections, however, former President Estrada only managed to
garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed a petition for
certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada
and Commission on Elections." But in a Resolution9 dated August 31, 2010, the Court dismissed the aforementioned
petition on the ground of mootness considering that former President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed a Certificate of
Candidacy,10 this time vying for a local elective post, that ofthe Mayor of the City of Manila.

On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification against former
President Estrada before the COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos Vidal anchored her
petition on the theory that "[Former President Estrada] is Disqualified to Run for Public Office because of his
Conviction for Plunder by the Sandiganbayan in Criminal Case No. 26558 entitled ‘People of the Philippines vs. Joseph
Ejercito Estrada’ Sentencing Him to Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute
Disqualification."11 She relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the
Omnibus Election Code (OEC), which state respectively, that:

Sec. 40, Local Government Code:

SECTION 40. Disqualifications.- The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from
office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or
has been sentenced by final judgmentfor subversion, insurrection, rebellion, or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to
be a candidate and to hold any public office, unless he has been given plenary pardon or granted amnesty. (Emphases
supplied.)

In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition for disqualification, the fallo
of which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of merit. 12

The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the consolidated resolution for SPA
No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution affirming it, this Commission will
not be labor the controversy further. Moreso, [Risos-Vidal] failed to present cogent proof sufficient to reverse the
standing pronouncement of this Commission declaring categorically that [former President Estrada’s] right to seek
public office has been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo. Since
this Commission has already spoken, it will no longer engage in disquisitions of a settled matter lest indulged in
wastage of government resources."13

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She presented five issues
for the Court’s resolution, to wit:

I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF

JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF
MANILA UNDER SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN CONVICTED OF
PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN DISMISSING THE PETITION FOR DISQUALIFICATION ON THE GROUND THAT THE CASE
INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS.
ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM
RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT
OF SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING PUBLIC OFFICE;
and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS

OF JURISDICTION IN NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT
ESTRADA IN THE FACE OF HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS
PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO VOTE RESULTING FROM
HIS CRIMINAL CONVICTION FOR PLUNDER.14

While this case was pending beforethe Court, or on May 13, 2013, the elections were conducted as scheduled and
former President Estrada was voted into office with 349,770 votes cast in his favor. The next day, the local board of
canvassers proclaimed him as the duly elected Mayor of the City of Manila.

On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor, moved for leave to
intervene in this case. His motion was granted by the Court in a Resolution15 dated June 25, 2013. Lim subscribed to
Risos-Vidal’s theory that former President Estrada is disqualified to run for and hold public office as the pardon
granted to the latter failed to expressly remit his perpetual disqualification. Further, given that former President
Estrada is disqualified to run for and hold public office, all the votes obtained by the latter should be declared stray,
and, being the second placer with 313,764 votes to his name, he (Lim) should be declared the rightful winning
candidate for the position of Mayor of the City of Manila.

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal actually presents only one
essential question for resolution by the Court, that is, whether or not the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in ruling that former President Estrada is qualified to vote and be
voted for in public office as a result of the pardon granted to him by former President Arroyo.

In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to former President Estrada
was conditional as evidenced by the latter’s express acceptance thereof. The "acceptance," she claims, is an indication
of the conditional natureof the pardon, with the condition being embodied in the third Whereas Clause of the pardon,
i.e., "WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office." She
explains that the aforementioned commitment was what impelled former President Arroyo to pardon former President
Estrada, without it, the clemency would not have been extended. And any breach thereof, that is, whenformer
President Estrada filed his Certificate of Candidacy for President and Mayor of the City of Manila, he breached the
condition of the pardon; hence, "he ought to be recommitted to prison to serve the unexpired portion of his sentence
x x x and disqualifies him as a candidate for the mayoralty [position] of Manila." 16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President Estrada mustbe disqualified
from running for and holding public elective office is actually the proscription found in Section 40 of the LGC, in
relation to Section 12 ofthe OEC. She argues that the crime of plunder is both an offense punishable by imprisonment
of one year or more and involving moral turpitude; such that former President Estrada must be disqualified to run for
and hold public elective office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the same did not operate
to make available to former President Estrada the exception provided under Section 12 of the OEC, the pardon being
merely conditional and not absolute or plenary. Moreover, Risos-Vidal puts a premium on the ostensible requirements
provided under Articles 36 and 41 of the Revised Penal Code, to wit:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned
as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)

She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a general statement
that such pardon carries with it the restoration of civil and political rights. By virtue of Articles 36 and 41, a pardon
restoring civil and political rights without categorically making mention what specific civil and political rights are
restored "shall not work to restore the right to hold public office, or the right of suffrage; nor shall it remit the
accessory penalties of civil interdiction and perpetual absolute disqualification for the principal penalties of reclusion
perpetua and reclusion temporal."17 In other words, she considers the above constraints as mandatory requirements
that shun a general or implied restoration of civil and political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and Florentino P. Feliciano in
Monsanto v. Factoran, Jr.18 to endorse her position that "[t]he restoration of the right to hold public office to one who
has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference,
no matter how intensely arguable, but must be statedin express, explicit, positive and specific language."

Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such express restoration is further
demanded by the existence of the condition in the [third] [W]hereas [C]lause of the pardon x x x indubitably indicating
that the privilege to hold public office was not restored to him." 19

On the other hand, the Office ofthe Solicitor General (OSG) for public respondent COMELEC, maintains that "the issue
of whether or not the pardon extended to [former President Estrada] restored his right to run for public office had
already been passed upon by public respondent COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028
and 09-104, there is no cogent reason for it to reverse its standing pronouncement and declare [former President
Estrada] disqualified to run and be voted as mayor of the City of Manila in the absence of any new argument that
would warrant its reversal. To be sure, public respondent COMELEC correctly exercised its discretion in taking judicial
cognizance of the aforesaid rulings which are known toit and which can be verified from its own records, in accordance
with Section 2, Rule 129 of the Rules of Court on the courts’ discretionary power to take judicial notice of matters
which are of public knowledge, orare capable of unquestionable demonstration, or ought to be known to them
because of their judicial functions."20

Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President Estrada’s] conviction for
plunder disqualifies him from running as mayor of Manila under Section 40 of the [LGC], the subsequent grant of
pardon to him, however, effectively restored his right to run for any public office." 21 The restoration of his right to run
for any public office is the exception to the prohibition under Section 40 of the LGC, as provided under Section 12 of
the OEC. As to the seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the pardon, the OSG asserts that "an airtight and rigid
interpretation of Article 36 and Article 41 of the [RPC] x x x would be stretching too much the clear and plain meaning
of the aforesaid provisions."22 Lastly, taking into consideration the third Whereas Clause of the pardon granted to
former President Estrada, the OSG supports the position that it "is not an integral part of the decree of the pardon and
cannot therefore serve to restrict its effectivity."23

Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions."24

For his part, former President Estrada presents the following significant arguments to defend his stay in office: that
"the factual findings of public respondent COMELEC, the Constitutional body mandated to administer and enforce all
laws relative to the conduct of the elections, [relative to the absoluteness of the pardon, the effects thereof, and the
eligibility of former President Estrada to seek public elective office] are binding [and conclusive] on this Honorable
Supreme Court;" that he "was granted an absolute pardon and thereby restored to his full civil and political rights,
including the right to seek public elective office such as the mayoral (sic) position in the City of Manila;" that "the
majority decision in the case of Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both
Vidal and Lim as authority for their respective claims, x x x reveal that there was no discussion whatsoever in the ratio
decidendi of the Monsanto case as to the alleged necessity for an expressed restoration of the ‘right to hold public
office in the pardon’ as a legal prerequisite to remove the subject perpetual special disqualification;" that moreover,
the "principal question raised in this Monsanto case is whether or not a public officer, who has been granted an
absolute pardon by the Chief Executive, is entitled to reinstatement toher former position without need of a new
appointment;" that his "expressed acceptance [of the pardon] is not proof that the pardon extended to [him] is
conditional and not absolute;" that this case is a mere rehash of the casesfiled against him during his candidacy for
President back in 2009-2010; that Articles 36 and 41 of the Revised Penal Code "cannot abridge or diminish the
pardoning power of the President expressly granted by the Constitution;" that the text of the pardon granted to him
substantially, if not fully, complied with the requirement posed by Article 36 of the Revised Penal Code as it was
categorically stated in the said document that he was "restored to his civil and political rights;" that since pardon is an
act of grace, it must be construed favorably in favor of the grantee;25 and that his disqualification will result in massive
disenfranchisement of the hundreds of thousands of Manileños who voted for him. 26

The Court's Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored allhis civil and political rights, which
naturally includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon
extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles
36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language
of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. Recall that the
petition for disqualification filed by Risos-Vidal against former President Estrada, docketed as SPA No. 13-211 (DC),
was anchored on Section 40 of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving moral turpitude, former President Estrada must be
disqualified to run for and hold public elective office notwithstanding the fact that he is a grantee of a pardon that
includes a statement expressing "[h]e is hereby restored to his civil and political rights." Risos-Vidal theorizes that
former President Estrada is disqualified from running for Mayor of Manila inthe May 13, 2013 Elections, and remains
disqualified to hold any local elective post despite the presidential pardon extended to him in 2007 by former
President Arroyo for the reason that it (pardon) did not expressly provide for the remission of the penalty of perpetual
absolute disqualification, particularly the restoration of his (former President Estrada) right to vote and bevoted upon
for public office. She invokes Articles 36 and 41 of the Revised Penal Code as the foundations of her theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does
not actually specify which political right is restored, it could be inferred that former President Arroyo did not
deliberately intend to restore former President Estrada’s rights of suffrage and to hold public office, orto otherwise
remit the penalty of perpetual absolute disqualification. Even if her intention was the contrary, the same cannot be
upheld based on the pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of
the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3)
cases involving violations of election laws, rules and regulations in which there was no favorable recommendation
coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to
delimit the pardoning power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935 Constitution,wherein the
provision granting pardoning power to the President shared similar phraseology with what is found in the present
1987 Constitution, the Court then unequivocally declared that "subject to the limitations imposed by the Constitution,
the pardoning power cannot be restricted or controlled by legislative action." The Court reiterated this pronouncement
in Monsanto v. Factoran, Jr.29 thereby establishing that, under the present Constitution, "a pardon, being a presidential
prerogative, should not be circumscribed by legislative action." Thus, it is unmistakably the long-standing position of
this Court that the exercise of the pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the Constitution.

This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve out an exception from the pardoning power of the President
in the form of "offenses involving graft and corruption" that would be enumerated and defined by Congress through
the enactment of a law. The following is the pertinent portion lifted from the Record of the Commission (Vol. II):

MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the same section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may be limited by legislation.

I suggest that this be deletedon the grounds that, first, violations of corrupt practices may include a very little offense
like stealing ₱10; second, which I think is more important, I get the impression, rightly or wrongly, that subconsciously
we are drafting a constitution on the premise that all our future Presidents will bebad and dishonest and,
consequently, their acts will be lacking in wisdom. Therefore, this Article seems to contribute towards the creation of
an anti-President Constitution or a President with vast responsibilities but no corresponding power except to declare
martial law. Therefore, I request that these lines be deleted.

MR. REGALADO. Madam President,may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of the fact that similar to
the provisions on the Commission on Elections, the recommendation of that Commission is required before executive
clemency isgranted because violations of the election laws go into the very political life of the country.
With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have that subjected to the
same condition because violation of our Corrupt Practices Law may be of such magnitude as to affect the very
economic systemof the country. Nevertheless, as a compromise, we provided here that it will be the Congress that will
provide for the classification as to which convictions will still require prior recommendation; after all, the Congress
could take into account whether or not the violation of the Corrupt Practices Law is of such magnitude as to affect the
economic life of the country, if it is in the millions or billions of dollars. But I assume the Congress in its collective
wisdom will exclude those petty crimes of corruption as not to require any further stricture on the exercise of executive
clemency because, of course, there is a whale of a difference if we consider a lowly clerk committing malversation of
government property or funds involving one hundred pesos. But then, we also anticipate the possibility that the
corrupt practice of a public officer is of such magnitude as to have virtually drained a substantial portion of the
treasury, and then he goes through all the judicial processes and later on, a President who may have close connections
with him or out of improvident compassion may grant clemency under such conditions. That is why we left it to
Congress to provide and make a classification based on substantial distinctions between a minor act of corruption or
an act of substantial proportions. SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the word
"violations"?

MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or "GROSS" can be
misconstrued by putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and that is precisely why it is
called executive clemency. In this sentence, which the amendment seeks to delete, an exception is being made.
Congress, which is the legislative arm, is allowed to intrude into this prerogative of the executive. Then it limits the
power of Congress to subtract from this prerogative of the President to grant executive clemency by limiting the
power of Congress to only corrupt practices laws. There are many other crimes more serious than these. Under this
amendment, Congress cannot limit the power of executive clemency in cases of drug addiction and drug pushing
which are very, very serious crimes that can endanger the State; also, rape with murder, kidnapping and treason. Aside
from the fact that it is a derogation of the power of the President to grant executive clemency, it is also defective in
that it singles out just one kind of crime. There are far more serious crimes which are not included.

MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is anexecutive power.
But even in the provisions on the COMELEC, one will notice that constitutionally, it is required that there be a favorable
recommendation by the Commission on Elections for any violation of election laws.

At any rate, Commissioner Davide, as the principal proponent of that and as a member of the Committee, has
explained in the committee meetings we had why he sought the inclusion of this particular provision. May we call on
Commissioner Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the Article on Accountability of
Public Officers. Under it, it is mandated that a public office is a public trust, and all government officers are under
obligation to observe the utmost of responsibility, integrity, loyalty and efficiency, to lead modest lives and to act with
patriotism and justice.

In all cases, therefore, which would go into the verycore of the concept that a public office is a public trust, the
violation is itself a violation not only of the economy but the moral fabric of public officials. And that is the reason we
now want that if there is any conviction for the violation of the Anti-Graft and Corrupt Practices Act, which, in effect, is
a violation of the public trust character of the public office, no pardon shall be extended to the offender, unless some
limitations are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the Committee left it
entirely to the legislature to formulate the mechanics at trying, probably, to distinguish between grave and less grave
or serious cases of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this is now the best time, since we
have strengthened the Article on Accountability of Public Officers, to accompany it with a mandate that the President’s
right to grant executive clemency for offenders or violators of laws relating to the concept of a public office may be
limited by Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this Constitutional Commission that
we are emasculating the powers of the presidency, and this provision to me is another clear example of that. So, I
speak against this provision. Even the 1935 and the 1973 Constitutions do not provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I am in sympathy with the
stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we should remember that above all the elected or
appointed officers of our Republic, the leader is the President. I believe that the country will be as the President is, and
if we systematically emasculate the power of this presidency, the time may come whenhe will be also handcuffed that
he will no longer be able to act like he should be acting.

So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

MR. COLAYCO. Thank you very much, Madam President.

I seldom rise here to object to or to commend or to recommend the approval of proposals, but now I find that the
proposal of Commissioner Tan is worthy of approval of this body.

Why are we singling out this particular offense? There are other crimes which cast a bigger blot on the moral character
of the public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief Executive in deciding
whether to pardon, to reprieve or to commute the sentence rendered by the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be Commissioner Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the Anti-Graft Court, so if this
is allowed to stay, it would mean that the President’s power togrant pardon or reprieve will be limited to the cases
decided by the Anti-Graft Court, when as already stated, there are many provisions inthe Revised Penal Code that
penalize more serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the exercise of executive
clemency, usually under Article V of the Revised Penal Code the judge will recommend such exercise of clemency. And
so, I am in favor of the amendment proposed by Commissioner Tan for the deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the President. In case of
other criminals convicted in our society, we extend probation to them while in this case, they have already been
convicted and we offer mercy. The only way we can offer mercy to them is through this executive clemency extended
to them by the President. If we still close this avenue to them, they would be prejudiced even worse than the
murderers and the more vicious killers in our society. I do not think they deserve this opprobrium and punishment
under the new Constitution.

I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also because of the
objection of the main proponent, Commissioner Davide. So we feel that the Commissioners should vote on this
question.

VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to delete the last sentence
of Section 17 appearing on lines 7, 8 and 9, please raise their hand. (Several Members raised their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is approved. 30 (Emphases supplied.)

The proper interpretation of Articles

36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code cannot, in any
way, serve to abridge or diminish the exclusive power and prerogative of the President to pardon persons convicted of
violating penal statutes.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific textual commands
which must be strictly followed in order to free the beneficiary of presidential grace from the disqualifications
specifically prescribed by them.

Again, Articles 36 and 41 of the Revised Penal Code provides:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned
as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)

A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is unwarranted, especially so
if it will defeat or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from ambiguity, it
must be given its literal meaning and applied without attempted interpretation. Verba legis non est recedendum. From
the words of a statute there should be no departure.31 It is this Court’s firm view that the phrase in the presidential
pardon at issue which declares that former President Estrada "is hereby restored to his civil and political rights"
substantially complies with the requirement of express restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express remission and/or
restoration of the rights of suffrage and/or to hold public office in the pardon granted to former President Estrada, as
required by Articles 36 and 41 of the Revised Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed by the President, as
they do not abridge or diminish the President’s power to extend clemency. He opines that they do not reduce the
coverage of the President’s pardoning power. Particularly, he states:

Articles 36 and 41 refer only to requirements of convention or form. They only provide a procedural prescription. They
are not concerned with areas where or the instances when the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no other governmental instrumentality needs to intervene to give
it full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the restoration of the
rights of suffrage and to hold public office, or the remission of the accessory penalty of perpetual absolute
disqualification,he or she should do so expressly. Articles 36 and 41 only ask that the President state his or her
intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the point, the President retains the power to
make such restoration or remission, subject to a prescription on the manner by which he or she is to state it. 32

With due respect, I disagree with the overbroad statement that Congress may dictate as to how the President may
exercise his/her power of executive clemency. The form or manner by which the President, or Congress for that matter,
should exercise their respective Constitutional powers or prerogatives cannot be interfered with unless it is so
provided in the Constitution. This is the essence of the principle of separation of powers deeply ingrained in our
system of government which "ordains that each of the three great branches of government has exclusive cognizance
of and is supreme in matters falling within its own constitutionally allocated sphere." 33 Moreso, this fundamental
principle must be observed if noncompliance with the form imposed by one branch on a co-equal and coordinate
branch will result into the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to
the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve
to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by
the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress
to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive
clemency. All that the said provisions impart is that the pardon of the principal penalty does notcarry with it the
remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It
still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the
effect of the pardon so decided upon by the President on the penalties imposedin accordance with law.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty
of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a
penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The
sentence that followed, which states that "(h)e is hereby restored to his civil and political rights," expressly remitted the
accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36
and 41 of the Revised Penal Code, it is indubitable from the textof the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of
reclusion perpetua.

In this jurisdiction, the right toseek public elective office is recognized by law as falling under the whole gamut of civil
and political rights.

Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention and Reacquisition Act of 2003,"
reads as follows:

Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws
of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they
renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice
their profession in the Philippines shall apply with the proper authority for a license or permit to engage in
such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by,
or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which theyare naturalized
citizens; and/or

(b) are in active service as commissioned or non commissioned officers in the armed forces of the
country which they are naturalized citizens. (Emphases supplied.)

No less than the International Covenant on Civil and Political Rights, to which the Philippines is a signatory,
acknowledges the existence of said right. Article 25(b) of the Convention states: Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and
without unreasonable restrictions:

xxxx

(b) To vote and to be electedat genuine periodic elections which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred to the right to seek
public elective office as a political right, to wit:

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their
citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The
petitioner’s failure to comply there with in accordance with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to
regain her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship,
she is ineligible to run for and hold any elective office in the Philippines. (Emphasis supplied.)

Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally considered as a political
right. Hence, the Court reiterates its earlier statement that the pardon granted to former President Estrada admits no
other interpretation other than to mean that, upon acceptance of the pardon granted tohim, he regained his FULL civil
and political rights – including the right to seek elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal provisions; and prescribes a
formal requirement that is not only unnecessary but, if insisted upon, could be in derogation of the constitutional
prohibition relative to the principle that the exercise of presidential pardon cannot be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr. 36 to justify her argument
that an absolute pardon must expressly state that the right to hold public office has been restored, and that the
penalty of perpetual absolute disqualification has been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices Teodoro R. Padilla and
Florentino P. Feliciano are to be respected, they do not form partof the controlling doctrine nor to be considered part
of the law of the land. On the contrary, a careful reading of the majority opinion in Monsanto, penned by no less than
Chief Justice Marcelo B. Fernan, reveals no statement that denotes adherence to a stringent and overly nuanced
application of Articles 36 and 41 of the Revised Penal Code that will in effect require the President to use a statutorily
prescribed language in extending executive clemency, even if the intent of the President can otherwise be deduced
from the text or words used in the pardon. Furthermore, as explained above, the pardon here is consistent with, and
not contrary to, the provisions of Articles 36 and 41.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was
removed by his acceptance of the absolute pardon granted to him.

Section 40 of the LGC identifies who are disqualified from running for any elective local position. Risos-Vidal argues
that former President Estrada is disqualified under item (a), to wit:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence[.] (Emphasis supplied.)

Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an exception, to wit:

Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted amnesty. (Emphasis supplied.)

As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder disqualifies him from
running for the elective local position of Mayor of the City of Manila under Section 40(a) of the LGC. However, the
subsequent absolute pardon granted to former President Estrada effectively restored his right to seek public elective
office. This is made possible by reading Section 40(a) of the LGC in relation to Section 12 of the OEC.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of
the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter
provision allows any person who has been granted plenary pardon or amnesty after conviction by final judgment of an
offense involving moral turpitude, inter alia, to run for and hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates running for local elective positions is not
unprecedented. In Jalosjos, Jr. v. Commission on Elections,37 the Court acknowledged the aforementioned provision as
one of the legal remedies that may be availed of to disqualify a candidate in a local election filed any day after the last
day for filing of certificates of candidacy, but not later than the date of proclamation. 38 The pertinent ruling in the
Jalosjos case is quoted as follows:

What is indisputably clear is that false material representation of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a crime penalized by prision mayor, a petition under
Section 12 ofthe Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The
petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which
remedy to adopt belongs to petitioner.39 (Emphasis supplied.)

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada
has publicly committed to no longer seek any elective position or office," neither makes the pardon conditional, nor
militate against the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have
been restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the
unqualified use of the term "civil and political rights"as being restored. Jurisprudence educates that a preamble is not
an essential part of an act as it is an introductory or preparatory clause that explains the reasons for the enactment,
usually introduced by the word "whereas."40 Whereas clauses do not form part of a statute because, strictly speaking,
they are not part of the operative language of the statute.41 In this case, the whereas clause at issue is not an integral
part of the decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to
make its effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the
pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner Maria Gracia Padaca’s
separate concurring opinion in the assailed April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which
captured the essence of the legal effect of preambular paragraphs/whereas clauses, viz:

The present dispute does not raise anything which the 20 January 2010 Resolution did not conclude upon. Here,
Petitioner Risos-Vidal raised the same argument with respect to the 3rd "whereas clause" or preambular paragraph of
the decree of pardon. It states that "Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office." On this contention, the undersigned reiterates the ruling of the Commission that the 3rd
preambular paragraph does not have any legal or binding effect on the absolute nature of the pardon extended by
former President Arroyo to herein Respondent. This ruling is consistent with the traditional and customary usage of
preambular paragraphs. In the case of Echegaray v. Secretary of Justice, the Supreme Court ruled on the legal effect of
preambular paragraphs or whereas clauses on statutes. The Court stated, viz.:

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It
cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to seek a public
office again, the former ought to have explicitly stated the same in the text of the pardon itself. Since former President
Arroyo did not make this an integral part of the decree of pardon, the Commission is constrained to rule that the 3rd
preambular clause cannot be interpreted as a condition to the pardon extended to former President
Estrada.42 (Emphasis supplied.)

Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s decision torun for
President in the May 2010 elections against, among others, the candidate of the political party of former President
Arroyo, after the latter’s receipt and acceptance of the pardon speaks volume of her intention to restore him to his
rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the President is in issue, the Court must turn to
the only evidence available to it, and that is the pardon itself. From a detailed review ofthe four corners of said
document, nothing therein gives an iota of intimation that the third Whereas Clause is actually a limitation, proviso,
stipulation or condition on the grant of the pardon, such that the breach of the mentioned commitment not to seek
public office will result ina revocation or cancellation of said pardon. To the Court, what it is simply is a statement of
fact or the prevailing situation at the time the executive clemency was granted. It was not used as a condition to the
efficacy orto delimit the scope of the pardon.

Even if the Court were to subscribe to the view that the third Whereas Clausewas one of the reasons to grant the
pardon, the pardon itself does not provide for the attendant consequence of the breach thereof. This Court will be
hard put to discern the resultant effect of an eventual infringement. Just like it will be hard put to determine which civil
or political rights were restored if the Court were to take the road suggested by Risos-Vidal that the statement "[h]e is
hereby restored to his civil and political rights" excludes the restoration of former President Estrada’s rights to suffrage
and to hold public office. The aforequoted text ofthe executive clemency granted does not provide the Court with any
guide asto how and where to draw the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the pardon is contingent on
the condition that former President Estrada will not seek janother elective public office, but it actually concerns the
coverage of the pardon – whether the pardon granted to former President Estrada was so expansive as to have
restored all his political rights, inclusive of the rights of suffrage and to hold public office. Justice Leonen is of the view
that the pardon in question is not absolute nor plenary in scope despite the statement that former President Estrada is
"hereby restored to his civil and political rights," that is, the foregoing statement restored to former President Estrada
all his civil and political rights except the rights denied to him by the unremitted penalty of perpetual absolute
disqualification made up of, among others, the rights of suffrage and to hold public office. He adds that had the
President chosen to be so expansive as to include the rights of suffrage and to hold public office, she should have
been more clear on her intentions.

However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of the Court, iscrystal clear
– the pardon granted to former President Estrada was absolute, meaning, it was not only unconditional, it was
unrestricted in scope, complete and plenary in character, as the term "political rights"adverted to has a settled
meaning in law and jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word "full" can be construed
as excluding the restoration of the rights of suffrage and to hold public office. There appears to be no distinction as to
the coverage of the term "full political rights" and the term "political rights" used alone without any qualification. How
to ascribe to the latter term the meaning that it is "partial" and not "full" defies one’s understanding. More so, it will be
extremely difficult to identify which of the political rights are restored by the pardon, when the text of the latter is
silent on this matter. Exceptions to the grant of pardon cannot be presumed from the absence of the qualifying word
"full" when the pardon restored the "political rights" of former President Estrada without any exclusion or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former President Estrada was
absolute in the absence of a clear, unequivocal and concrete factual basis upon which to anchor or support the
Presidential intent to grant a limited pardon.

To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand close scrutiny even under the
provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

The Court has consistently held that a petition for certiorariagainst actions of the COMELEC is confined only to
instances of grave abuse of discretion amounting to patentand substantial denial of due process, because the
COMELEC is presumed to be most competent in matters falling within its domain. 43
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to passion, prejudice or
personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to
perform a positive duty enjoined by law or to act at all in contemplation of law. For an act to be condemned as having
been done with grave abuse of discretion, such an abuse must be patent and gross. 44

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to prove that the
assailed COMELEC Resolutions were issued in a "whimsical, arbitrary or capricious exercise of power that amounts to
an evasion orrefusal to perform a positive duty enjoined by law" or were so "patent and gross" as to constitute grave
abuse of discretion.

On the foregoing premises and conclusions, this Court finds it unnecessary to separately discuss Lim's petition-in-
intervention, which substantially presented the same arguments as Risos-Vidal's petition.

WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED. The Resolution dated April 1, 2013
of the Commission on Elections, Second Division, and the Resolution dated April 23, 2013 of the Commission on
Elections, En bane, both in SPA No. 13-211 (DC), are AFFIRMED.

SO ORDERED. TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ARTURO D. BRION* DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE MARVIC M.V.F. LEONEN

Associate Justice Associate Justice

FRANCIS H. JARDELEZA**
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice
 [G.R. No. 93023. March 13, 1991.]

TOMAS D. ACHACOSO, Petitioner, v. CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as
Executive Secretary and Secretary of the Department of Labor and Employment (DOLE), respectively; and JOSE
N. SARMIENTO, Respondents.

Padilla, Jimenez, Kintanar and Asuncion Law Office for Petitioner.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY OF TENURE; PERMANENT APPOINTMENT ISSUED ONLY TO
PERSONS QUALIFIED. — A permanent appointment can be issued only "to a person who meets all the requirements
for the position to which he is being appointed, including the appropriate eligibility prescribed."cralaw virtua1aw
library

2. ID.; ID.; ID.; PERSONS APPOINTED WITHOUT THE REQUISITE QUALIFICATION DEEMED IN ACTING CAPACITY. — The
mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its
occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his
appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles.

3. ID.; ID.; ID.; TEMPORARY APPOINTMENT; PURPOSE. — The purpose of an acting or temporary appointment is to
prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the
selection of a permanent or another appointee.

4. ID.; ID.; ID.; ID.; CONDITION IMPOSED ON APPOINTEE. — The person named in an acting capacity accepts the
position under the condition that he shall surrender the office once he is called upon to do so by the appointing
authority.

5. ID.; ID.; ID.; EXPIRATION OF TERM; METHOD OF TERMINATING TEMPORARY EMPLOYMENT. — In these
circumstances, the acting appointee is separated by a method of terminating official relations known in the law of
public officers as expiration of the term. His term is understood at the outset as without any fixity and enduring at the
pleasure of the appointing authority. When required to relinquish his office, he cannot complain that he is being
removed in violation of his security of tenure because removal imports the separation of the incumbent before the
expiration of his term. This is allowed by the Constitution only when it is for cause as provided by law. The acting
appointee is separated precisely because his term has expired. Expiration of the term is not covered by the
constitutional provision on security of tenure.

6. ID.; ID.; ID.; LUEGO CASE (143 SCRA 327) NOT APPLICABLE TO CASE AT BAR. — The case of Luego v. Civil Service
Commission is not applicable because the facts of that case are different. The petitioner in Luego was qualified and
was extended a permanent appointment that could not be withdrawn on the ground that it was merely temporary. In
the case at bar, the petitioner was not eligible and therefore could be appointed at best only in a temporary capacity.
The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, Palma-Fernandez v.
De la Paz, and Dario v. Mison, are also not pertinent because they also involved permanent appointees who could not
be removed because of their security of tenure.

DECISION

CRUZ, J.:
The petitioner invokes security of tenure against his claimed removal without legal cause. The respondents assert he is
not entitled to the guaranty because he is not a career official. These are the legal issues. The facts are as
follows:chanrob1es virtual 1aw library

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment Administration on October
16, 1987, and assumed office on October 27, 1987. On January 2, 1990, in compliance with a request addressed by the
President of the Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and
other government officials, he filed a courtesy resignation. This was accepted by the President on April 3, 1990, "with
deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn over his office to the Deputy
Administrator as officer-in-charge. In a letter dated April 19, 1990, he protested his replacement and declared he was
not surrendering his office because his resignation was not voluntary but filed only in obedience to the President’s
directive. On the same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the
petitioner. Achacoso was informed thereof the following day and was again asked to vacate his office. He filed a
motion for reconsideration on April 23, 1990, but this was denied on April 30, 1990. He then came to this Court for
relief.

In this petition for prohibition and mandamus, this Court is asked to annul the appointment of Sarmiento and to
prohibit the respondents from preventing the petitioner from discharging his duties as Administrator of the POEA.

Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure,
which is one of the characteristics of the Career Service as distinguished from the Non-Career Service. 1 Claiming to
have the rank of undersecretary, he says he comes under Article IV, Section 5 of P.D. 807, otherwise known as the Civil
Service Decree, which includes in the Career Service:chanrob1es virtual 1aw library

3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant
Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the
President.

His argument is that in view of the security of tenure enjoyed by the above-named officials, it was "beyond the
prerogatives of the President" to require them to submit courtesy resignations. Such courtesy resignations, even if
filed, should be disregarded for having been submitted "under duress," as otherwise the President would have the
power to remove career officials at pleasure, even for capricious reasons. In support of this contention, he invokes
Ortiz v. Commission on Elections, 2 where we observed that "to constitute a complete and operative act of resignation,
the officer or employee must show a clear intention to relinquish" and that "a courtesy resignation cannot properly be
interpreted as a resignation in the legal sense for it is not necessarily a reflection of a public official’s intention to
surrender his position." He concludes that as his removal was illegal, there was no vacancy in the disputed office to
which respondent Sarmiento could have been validly appointed.

In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career executive service
position but submits that the petitioner himself is not a career executive service official entitled to security of tenure.
He offers the following certification from the Civil Service Commission to show that the petitioner did not possess the
necessary qualifications when he was appointed Administrator of the POEA in 1987:chanrobles.com.ph : virtual law
library

CERTIFICATION

This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D. Achacoso III has not
participated in a Career Executive Service Development Program (CESDP) and is not a CES eligible. This is to certify
further that Mr. Achacoso was not appointed to a rank in the CES and is not therefore a member of the Career
Executive Service.

x x x

(Sgd.) ELMOR D. JURIDICO

Executive Director

Reference is also made to the following rules embodied in Part III, Article IV, Integrated Reorganization Plan as
approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service:chanrob1es virtual 1aw
library

c. Appointment. Appointment to appropriate classes in the Career Service shall be made by the President from a list of
career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank;
provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and
heads of the bureaus and offices and equivalent positions shall be with the confirmation of the Commission on
Appointments. The President may, however, in exceptional cases, appoint any person who is not a Career Executive
Service eligible, provided that such appointee shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher class until he qualifies in such examination. (Emphasis
supplied.).

The respondents contend that as the petitioner was not a career executive service eligible at the time of his
appointment, he came under the exception to the above rule and so was subject to the provision that he "shall
subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher
rank until he qualifies in such examination." Not having taken that examination, he could not claim that his
appointment was permanent and guaranteed him security of tenure in his position.

It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the
position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best,
therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the
appointing authority and "at a moment’s notice," conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in the petitioner’s Reply
and the Solicitor-General’s Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its
occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his
appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles. 3 The appointment extended to
him cannot be regarded as permanent even if it may be so designated.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by
authorizing a person to discharge the same pending the selection of a permanent or another appointee. 4 The person
named in an acting capacity accepts the position under the condition that he shall surrender the office once he is
called upon to do so by the appointing authority.

In these circumstances, the acting appointee is separated by a method of terminating official relations known in the
law of public officers as expiration of the term. His term is understood at the outset as without any fixity and enduring
at the pleasure of the appointing authority. When required to relinquish his office, he cannot complain that he is being
removed in violation of his security of tenure because removal imports the separation of the incumbent before the
expiration of his term. 5 This is allowed by the Constitution only when it is for cause as provided by law. The acting
appointee is separated precisely because his term has expired. Expiration of the term is not covered by the
constitutional provision on security of tenure.

There is a long line of cases affirming the rule that:chanrob1es virtual 1aw library

. . . One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the
pleasure of the appointing power, there being no need to show that the termination is for cause. 6

The petitioner contends that his appointment was really intended to be permanent because temporary appointments
are not supposed to exceed twelve months and he was allowed to serve in his position for more than three years. This
is unacceptable. Even if that intention were assumed, it would not by itself alone make his appointment permanent.
Such an appointment did not confer on the petitioner the appropriate civil service eligibility he did not possess at the
time he was appointed, nor did it vest him with the right to security of tenure that is available only to permanent
appointees.

The case of Luego v. Civil Service Commission 7 is not applicable because the facts of that case are different. The
petitioner in Luego was qualified and was extended a permanent appointment that could not be withdrawn on the
ground that it was merely temporary. In the case at bar, the petitioner was not eligible and therefore could be
appointed at best only in a temporary capacity. The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court, 8 Palma-Fernandez v. De la Paz, 9 and Dario v. Mison, 10 are also not pertinent because
they also involved permanent appointees who could not be removed because of their security of tenure.

It should be obvious from all the above observations that the petitioner could have been validly replaced even if he
had not filed his courtesy resignation. We therefore do not have to rule on its legality. Suffice it to say that it could
have been a graceful way of withdrawing him from his office with all the formal amenities and no asperity or discord if
only he had not chosen to contest it. But it was his right to do so, of course, although his challenge has not succeeded.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

Fernan C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.

Narvasa and Padilla, JJ., took no part.

G.R. No. 93711 February 25, 1991

DR. EMILY M. MAROHOMBSAR, petitioner,

vs.
AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao State University, and CORAZON
BATARA, respondents.

Pedro Q. Quadra for petitioner.

Adnan V. Alonto for respondent Ahmad E. Alonto, Jr.

GUTIERREZ, JR., J.:

The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed Acting Vice-
Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by the respondent President
may be removed from office even without cause.

On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-Chancellor for
Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-President for External
Studies.

On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the
functions of the former were to be exercised by the latter. The petitioner was appointed acting Vice-Chancellor for
Academic Affairs on the same day. The Board of Regents of the MSU, on May 16, 1989, approved her appointment as
acting Vice-Chancellor for Academic Affairs.

On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that he has decided
to tap the petitioner's talent for the MSU system as Vice-President for Academic Affairs which position is under the
administrative staff of the respondent MSU President. The petitioner, on the same date, answered that she cannot
accept the position since she has already started several projects in the OVCAA which she wants to see through.

The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-Chancellor for Academic
Affairs but the latter did not accept the designation. On May 28, 1990, the respondent President issued Special Order
No. 158-P designating Professor Corazon Batara, the other respondent in this case, as Officer-in-Charge of the OVCAA.

The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the respondent President.

On June 21, 1990, the Court issued a temporary restraining order directing the respondents to cease and desist from
enforcing and/or implementing Special Order No. 159-P and from interfering and/or preventing the petitioner from
performing her duties as Vice-Chancellor for Academic Affairs of the MSU, Marawi Campus.

On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt, alleging that said
respondent, in violation of the temporary restraining order issued by this Court submitted Special Order No. 158-P to
the MSU Board of Regents for approval.

The petitioner asserts that her appointment being permanent, she can be removed only after hearing and for cause.

Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as follows:

RESOLVED, that upon recommendation of the President of the University of the Executive Committee of the
Board of Regents the following Special Orders as amended/corrected are hereby confirmed:

A. DESIGNATIONS

A.1 Major designations

xxx xxx xxx

 9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice Chancellor for
Academic Affairs, MSU Marawi Campus, with an honorarium in accordance with the approved policies of the
University, subject to accounting and auditing rules and regulations, effective January 2, 1989 and shall remain
in force until revoked or amended by competent authority. (Rollo, pp. 5354; Emphasis supplied)

It may be noted that the special order confirmed by the Board of Regents specifically designated the petitioner as
Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity is essentially temporary
and revocable in character and the holder of such appointment may be removed anytime even without hearing or
cause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48
[1957]; Valer v. Briones, 9 SCRA 596 [1963]; Abana v. Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293
[1965]. A person who accepts an appointment in an acting capacity extended and received without any protest or
reservation and who acts thereunder for a considerable time cannot later be heard to say that the appointment was, in
reality, permanent and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274
[1965])

There are circumstances, however, which rule against the routine or blind application of the principle which governs
acting appointments to this case.

The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a
limited time until a permanent appointment is extended or a new appointee is chosen. (Austria v. Amante, supra;
Castro v. Solidum, supra; and Valer v. Briones, supra)

The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but also defines
the authority of the appointing power. A public officer appointed in an acting capacity cannot claim that the
appointment shall in time ripen into a permanent one. However, neither can the appointing power use the principle of
temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service
Law. This is similar to the rule that the head of an office cannot arbitrarily convert permanent positions to primarily
confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. It is the
nature of the functions attached to a position, not the nomenclature or title given by the appointing authority which
determines its primarily confidential nature. (Piñero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court
may inquire into the true nature of an "acting" appointment to determine whether or not it is used as a device to
circumvent the security of tenure principle.

In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President is obvious. The
petitioner is a career official of MSU for over 27 years. She was Vice-President for External Studies since 1982. On
March 22, 1988, she was given an additional assignment as Officer-in-Charge of the Office of the Vice-Chancellor for
Academic Affairs concurrently with the permanent position as Vice-President for External Studies.

About nine months later, the Vice-Presidency for External Studies was "merged" with the Vice-Chancellorship for
Academic Affairs. At the same time, the petitioner was appointed acting Vice-Chancellor for Academic Affairs.

The effect, therefore, was to abolish the petitioner's permanent office and give her a temporary appointment in the
supposedly new office which replaced or absorbed the former office. Another result was the loss by the petitioner of
her permanent status.

There are reasons which indicate that these maneuverings by the respondent President cannot be characterized as
bona fide.

Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:

Personnel Matters. In accordance with the policies and rules prescribed by the Board, the specific powers of the
President include the following (delegated powers)

xxx xxx xxx

22. Designation of any Dean, Director, or Department Chairman in acting capacity or any Officer-in-Charge for
any of these positions, for a period of less than one year, such designation being made without additional
 compensation for the position designated except the honorarium attached to said position; PROVIDED, That
the President shall report the designation in the next regular meeting after winch the designation shall be null
and void unless otherwise renewed.

The power to designate is vested in the MSU President. The designation must be less than one year. It must be
reported to the Board of Regents at the next regular meeting. After the meeting, another designation must be issued if
no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item
permanently, not merely leaving it temporarily occupied.

On the other hand, the power to appoint is vested in the Board of Regents as follows:

Sec. 6. The Board of Regents shall have the following powers and duties, in addition to its general powers of
administration and the exercise of the power of the corporation;

xxx xxx xxx

(e) To appoint, on the recommendation of the President of the University, professor, instructors, lecturers and
other employees of the University. . . . — MSU Charter, RA 1387

If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for
the information of the Board, the President's action should be merely "noted."

When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting on an ad
interim appointment effected by the President. No other interpretation can be validly made. If it was a mere
designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one. An ad
interim appointment is one made during the time when the appointing or confirming body is not in session and there
is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned
to the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-
Presidency for External Studies was abolished and its functions were merged with the Vice-Chancellorship for
Academic Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad
interim appointment.

The respondent cannot use the device of an ambiguous designation to go around the security of tenure principle.
Under the MSU Code, a designation requires a fixed period of not less than one year. The appointment given to the
petitioner was indefinite. She would serve at the pleasure of the MSU President who is not even the head of the
institution because the head is the Board of Regents.

The intent to convert permanent items into temporary ones is apparent. The petitioner states that the purpose "is to
hold the sword of Damocles hanging over the head of all MSU employees and officers." (Rollo, p. 75) The Board of
Regents cooperated in the plan. Practically, all top officers below the President were converted into positions where
the occupants serve at the pleasure of the President and presumably, the Board of Regents. Thus, at the May 16, 1989
Board of Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, the following acting
appointments were submitted for approval or confirmation:

1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as Acting Executive Vice-President
...;

2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as Acting Vice President for
Academic Affairs . . . ;

3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting Assistant Vice-President for
Academic Affairs . . . ;

4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting Vice President for Planning
and Development . . . ;
 5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting Assistant Vice President for
Planning and Development . . . ;

6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-in-Charge of the Office of
the Vice-President for Administration and Finance . . . ;

7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting Assistant Vice President for
Administration and Finance . . . ;

8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice-Chancellor for
Academic Affairs, MSU Marawi Campus . . . ;

10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting Vice Chancellor for
Administration and Finance . . . ;

11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice Chancellor for Research and
Extension . . . (Rollo, pp. 117-118)

The respondents argue that the permanent item of the petitioner is Professor VI. They state:

xxx xxx xxx

Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. This is
precisely the reason why petitioner's designation as Acting VCAA can not be deemed a regular or permanent
appointment because, if it were so, the anomalous situation of one permanently appointed to two public
positions simultaneously would arise. (Rollo, p. 130)

This argument has no merit.

As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the Philippines (7
SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to remove them by limiting
their terms of office from permanent to a five (5) year term is unconstitutional. Deans and Directors are selected from
faculty members. An appointment as Professor is also needed for salary rating purposes but does not detract from the
permanent nature of the administrative position (id., at pp. 554 and 556). The fact that Professor Tapales was given
another appointment as Director of the U.P. Conservatory of Music does not mean that the second appointment is
only temporary in nature. In the present case, the fact that Professor Marohombsar has a permanent appointment as
Professor does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially since
the same was duly confirmed by the MSU Board of Regents. The only difference is that her position as Vice-Chancellor
has a fixed term while that of Professor Tapales was until he retired or resigned.

The attempt of the respondent to solve the problem by placing the petitioner in his own administrative staff as Vice-
President for Academic Affairs cannot be countenanced. The petitioner served in this capacity from 1975 to 1978 after
which she became Vice-President for External Studies in 1982. The proffered position is not only less desirable to the
petitioner but she expressly rejected it, preferring to stay in her present position. She thanked the respondent but
stated she would not be effective in the new position while in the OVCAA she could complete a number of projects
and programs. (Rollo, p. 21) The correctness of the petitioner's stand is explained by this Court in Sta. Maria v.
Lopez (31 SCRA 673 [1970]). There are transfers which appear to be promotions or lateral movements but are in truth
demotions. There is no showing that the interest of the service would be served if the proffered appointment would be
forced on her.

No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cariño opined, and the Court agrees
with him, that the petitioner may not be removed from the disputed office by the MSU President without the authority
of the Board. And, as correctly stated by the Secretary, Special Order No. 158-P issued by the respondent president
designating respondent Batara as officer in-charge of the same office was unapproved by the Board, hence, the special
order cannot revoke, or could not have revoked the designation of the petitioner as acting Vice-Chancellor. (Annex A,
Petitioner's Memorandum, Rollo, pp. 119-120)
The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special Order No. 158-P to
the Board of Regents for approval. But such submission was made after the Court already issued its temporary
restraining order and consequently, his action constituted contempt of Court. Considering, however, that the
respondent appears to have acted in the honest albeit mistaken belief that MSU would progress faster if the executive
officers serve at his pleasure and discretion, the Court rules that declaring him in contempt would be too harsh a
remedy. The respondent President is, nevertheless, admonished for his action. When this Court issues a restraining
order, it must be obeyed.

WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in a permanent capacity of
the position of Vice-Chancellor for Academic Affairs of MSU Marawi until the end of her three-year term or her tenure
is otherwise lawfully terminated. The motion to cite respondent Alonto for contempt is DENIED but the respondent is
admonished to faithfully heed court orders in the future. The Temporary Restraining Order issued by this Court on
June 21, 1990 is made PERMANENT.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
 [G.R. No. 149451. May 8, 2003.]

REMEDIOS S. PADILLA, Petitioner, v. THE HONORABLE CIVIL SERVICE COMMISSION and DEPARTMENT OF
LABOR and EMPLOYMENT, Respondents.

DECISION

CORONA, J.:

Before this Court is a petition for review of the decision 1 dated January 22, 2001 of the Court of Appeals affirming (1)
Resolution No. 980256 2 dated February 5, 1998 of the Civil Service Commission (CSC) dismissing petitioner Remedios
Padilla’s appeal and (2) Resolution No. 981425 3 dated June 10, 1998 of CSC denying her motion for reconsideration.

The antecedent facts, as found by respondent CSC and affirmed by the Court of Appeals, follow.chanrob1es virtua1
1aw 1ibrary

On January 18, 1982, petitioner Remedios Padilla assumed the permanent position of Clerk II in the then Ministry of
Labor and Employment. On May 11, 1983, petitioner was promoted to the position of Labor Development Assistant.
Without waiting for the CSC’s approval of her appointment, she assumed her new position.

On March 4, 1985, CSC-NCR Regional Director Aurora de Leon sent a 1st Indorsement to the Minister of Labor and
Employment disapproving petitioner’s appointment as Labor Development Assistant on the ground that she failed to
meet the eligibility requirement for the position. Maria Esther Manigque, Officer-In-Charge of the Institute of Labor
and Manpower Studies, sought reconsideration of respondent CSC’s ruling by pointing out petitioner’s satisfactory
performance. It was denied. In May 1985, petitioner resigned from the service citing "personal reasons." chanrob1es
virtua1 1aw 1ibrary

On July 28, 1985, petitioner took the Career Service Examination (Professional Level). After passing the same in August,
1985, she re-applied at the respondent Department of Labor and Employment (DOLE). She was appointed as Casual
Research Assistant on October 17, 1988, effective until November 30, 1988. Upon expiration of her appointment, the
same was extended to December 31, 1988. From January 1989 until December 1989, petitioner occupied the position
of Casual Technical.

Due to the implementation of RA 6758, otherwise known as the Salary Standardization Act of 1989, casual items such
as Casual Research Assistant and Casual Technical were abolished. Petitioner was offered the position of Clerk II (the
only available permanent position then) for which the Selection Board deemed her qualified. However, she declined
the offer.

On January 2, 1990, petitioner was appointed Casual Clerk III, effective till the end of June 1990. After the expiration of
her appointment as a casual employee, petitioner was no longer given any position. She then requested the monetary
conversion of her unused sick and vacation leaves which respondent DOLE granted.

Nevertheless, petitioner appealed her alleged termination as casual employee to the CSC but this was dismissed 4 for
having been filed out of time.

Thereafter, petitioner filed a letter-complaint addressed to then Secretary of Justice Teofisto Guingona. The letter-
complaint was forwarded to respondent DOLE and later to the CSC for appropriate action. Acting on the complaint,
the CSC treated the same as a petition to seek relief. In its Resolution No. 980256 dated February 5, 1998, the CSC
dismissed the petition and denied petitioner’s claim. Her motion for reconsideration was likewise denied in CSC
Resolution No. 981425 dated June 10, 1998.chanrob1es virtua1 1aw 1ibrary

Petitioner appealed the CSC resolutions to the Court of Appeals. On January 22, 2001, the appellate court rendered a
decision, the dispositive portion of which read:chanrob1es virtual 1aw library

WHEREFORE, in view of the foregoing, the petition is DENIED and accordingly DISMISSED for lack of merit.
Accordingly, the assailed Resolution No. 98-0256 dated February 5, 1998 issued by the Civil Service Commission
dismissing the petitioner’s appeal, as well as its Resolution No. 981425 dated June 10, 1998, is (sic) AFFIRMED.

SO ORDERED. 5

The Court of Appeals held that the CSC had the power to revoke the appointment of a public officer whose
qualification did not meet the minimum requirements of the law. To refute petitioner’s contention that respondent
DOLE was obliged to give her a permanent position upon becoming eligible, the appellate court ruled that, although
the petitioner was a civil service eligible, her acceptance of a temporary appointment as a casual vested her no right to
security of tenure. Her appointment depended exclusively on the pleasure of the appointing authority. 6

On July 4, 2001, the appellate court issued a resolution 7 denying petitioner’s motion for reconsideration.chanrob1es
virtua1 1aw 1ibrary

Hence, this appeal based on the following assignments of error:chanrob1es virtual 1aw library

WHETHER OR NOT THE TERMINATION OF PETITIONER IS LEGAL.

II

WHETHER OR NOT THE DISMISSAL OF HER COMPLAINT BY PUBLIC RESPONDENT CIVIL SERVICE COMMISSION WAS
PROPER UNDER THE CIRCUMSTANCES. 8

Petitioner does not question anymore the disapproval of her appointment as Labor Development Assistant due to her
failure to meet the eligibility requirements. However, she invokes her alleged right to be reinstated to a permanent
position considering that she has since attained the required civil service eligibility and that she used to hold a
permanent position. Petitioner bewails the fact that she ended up as a casual employee despite her civil service
eligibility and without any derogatory record during her stint in the government. To support her claim, she cites
Section 24 (d) of PD 807, otherwise known as the Civil Service Law of 1975, which states that" (a)ny person who has
been permanently appointed to a position in the career service and who has, through no delinquency or misconduct,
been separated therefrom, may be reinstated to a position in the same level for which he is qualified."cralaw virtua1aw
library

She also contends that she was not accorded due process when she was removed from her permanent position
without prior notice. Neither was she given an opportunity to explain why she should not be removed from office.

Did respondent DOLE violate petitioner’s purported right to security of tenure? We do not think so.chanrob1es virtua1
1aw 1ibrary

The jurisdiction of this Court over cases brought to it from the Court of Appeals via Rule 45 of the Rules of Court is
limited to reviewing errors of law. 9 The factual findings of the Court of Appeals are generally conclusive and may not
be reviewed on appeal. 10 We have good reason to apply this well-entrenched principle in the instant case because
the factual findings of the Court of Appeals affirm the findings of fact of the CSC.

One of the exceptions to the rule is when the appellate court’s factual disquisitions are not supported by evidence. 11
In the case at bar, petitioner seeks reinstatement on the ground that she was unjustly removed from the service, which
was contrary to the appellate court’s finding that she voluntarily resigned. Considering that petitioner’s submission
was premised on an alleged misapprehension of facts, she had the burden of showing that the CSC and the appellate
court’s findings of fact were not supported by evidence. 12 However, she fell short of that responsibility and ended up
with hollow claims.

On the other hand, the Office of the Solicitor General (OSG), representing respondents CSC and DOLE, adequately
proved that petitioner voluntarily resigned and was never removed from the service. The OSG presented as evidence
petitioner’s own letter in 1990 addressed to Sec. Flerida Ruth Romero, 13 then Special Assistant to the President and
Presidential Legislative Liaison Officer, which read:chanrob1es virtual 1aw library

In 1985, The Civil Service Commission (CSC) disapproved my appointment because the qualification standard for the
position of Labor Development Assistant was raised from sub-professional to professional level. Despite my best effort
to appeal before the Civil Service Commission, I never got a favorable response. I was hurt so much that I decided to
resign in April 1985. 14 (Italics supplied)

Petitioner used to occupy the permanent position of Clerk II before the disapproval of her appointment for Labor
Development Assistant, a higher permanent position. Thereafter, she voluntarily resigned and later came back to
occupy casual positions only despite passing the eligibility requirement for a permanent position. Like removal for just
cause, voluntary resignation results in the abdication of all present and future rights accorded to an employee and in
the severance of all work-related ties between the employer and the employee. When she returned to work for
respondent DOLE, the same was not a continuation of her previous service but the start of a new work slate. Petitioner
could not therefore demand from respondent DOLE her reinstatement to a permanent position under Section 24 (d) of
PD 807 inasmuch as she was never unjustly removed.

We agree with the observation of the OSG that when petitioner re-applied for and was offered the position of Casual
Research Assistant and later Casual Technical, she readily and unqualifiedly accepted the said offer. Having accepted
the position of a casual employee, petitioner should have known that she had no security of tenure and could thus be
separated from the service anytime.

We also take note of the fact that in December 1989, after finishing her contract as a Casual Technical, respondent
DOLE offered to petitioner the permanent position of Clerk II (the only available permanent position then) for which
the Selection Board deemed her qualified. However, she declined the offer and instead opted to accept another casual
position as Casual Clerk III. Respondent DOLE therefore gave her the opportunity to re-assume a permanent position
but petitioner was apparently bent on acquiring a position equal to a Labor Development Assistant, a position she
could not obtain by right due to her earlier resignation. On the ground of estoppel, petitioner is barred from asserting
her right to a permanent position.

Not having been unjustly removed from the service, it follows that petitioner’s right to due process was not violated. In
fact, there was no need to furnish her a notice of termination since, as a casual employee, petitioner was aware of the
date of expiration of her temporary appointment.chanrob1es virtua1 law library

WHEREFORE, the petition is hereby DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
G.R. No. 79974 December 17, 1987

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,

vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO
CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON
APPOINTMENTS, intervenor.

PADILLA, J.:

Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the
petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of
Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of
Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of
Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been
confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of
respondent Mison's appointment without the confirmation of the Commission on Appointments.

Because of the demands of public interest, including the need for stability in the public service, the Court resolved to
give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the
proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of
whether the petitioners have a standing to bring this suit.

By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and
file a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed
by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987.

This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments
of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution.

The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like
this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek
Mining Corp. vs. Rodriguez, 1 that:

The fundamental principle of constitutional construction is to give effect to the intent of the framers
of the organic law and of the people adopting it. The intention to which force is to be given is that
which is embodied and expressed in the constitutional provisions themselves.

The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the
legislative department may want them construed, but in accordance with what they say and provide.

Section 16, Article VII of the 1987 Constitution says:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of
officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time,
are:

First, the heads of the executive departments, ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution; 2

Second, all other officers of the Government whose appointments are not otherwise provided for by
law; 3

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President
alone.

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of
such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the
President appoints. 5

The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the
President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted
rule in constitutional and statutory construction that an express enumeration of subjects excludes others not
enumerated, it would follow that only those appointments to positions expressly stated in the first group require the
consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of
constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional
Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution
and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups,
require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr.
Chief Justice J. Abad Santos in Gold Creek is apropos:

In deciding this point, it should be borne in mind that a constitutional provision must be presumed to
have been framed and adopted in the light and understanding of prior and existing laws and with
reference to them. "Courts are bound to presume that the people adopting a constitution are familiar
with the previous and existing laws upon the subjects to which its provisions relate, and upon which
they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65
L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —

xxx xxx xxx

(3) The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of
the Government whose appointments are not herein otherwise provided for, and those whom he may
be authorized by law to appoint; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of departments.

(4) The President shall havethe power to make appointments during the recess of the Congress, but
such appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.

xxx xxx xxx

(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other
public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-

Section 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed
Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of
The government whose appointments are not herein otherwise provided for, and those whom he may
be authorized by law to appoint. However, the Batasang Pambansa may by law vest in the Prime
Minister, members of the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions,
and Boards the power to appoint inferior officers in their respective offices.

Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the
Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the
Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue
of "horse-trading" and similar malpractices.

On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and
remolded by successive amendments, placed the absolute power of appointment in the President with hardly any
check on the part of the legislature.

Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not
difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle
ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of
appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in
the second and third groups as well as those in the fourth group, i.e., officers of lower rank.

The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article
VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:

Section 16. The president shall nominate and, with the consent of a Commission on Appointment,
shall appoint the heads of the executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all
other officers of the Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may by law vest the appointment
of inferior officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis
supplied].

The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames
discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly
expressed to make the power of the Commission on Appointments over presidential appointments more limited than
that held by the Commission in the 1935 Constitution. Thus-

Mr. Rama: ... May I ask that Commissioner Monsod be recognized

The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our
time to lay the basis for some of the amendments that I would like to propose to the
Committee this morning.

xxx xxx xxx

On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to
the department heads, ambassadors, generals and so on but not to the levels of bureau heads and
colonels.

xxx xxx xxx 8 (Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by
the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second
sentence 9 of the section from the same requirement. The records of the deliberations of the Constitutional
Commission show the following:

MR. ROMULO: I ask that Commissioner Foz be recognized

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line
26 which is to delete the words "and bureaus," and on line 28 of the same page, to
change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL.
This last amendment which is co-authored by Commissioner de Castro is to put a
period (.) after the word ADMIRAL, and on line 29 of the same page, start a new
sentence with: HE SHALL ALSO APPOINT, et cetera.

MR. REGALADO: May we have the amendments one by one. The first proposed
amendment is to delete the words "and bureaus" on line 26.

MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what would be the
justification of the proponent for such a deletion?

MR. FOZ: The position of bureau director is actually quite low in the executive
department, and to require further confirmation of presidential appointment of heads
of bureaus would subject them to political influence.

MR. REGALADO: The Commissioner's proposed amendment by deletion also includes

regional directors as distinguished from merely staff directors, because the regional
directors have quite a plenitude of powers within the regions as distinguished from
staff directors who only stay in the office.

MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff
bureau directors.

xxx xxx xxx

MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner

proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint
the bureau directors if it is not the President?

MR. FOZ: It is still the President who will appoint them but their appointment shall no
longer be subject to confirmation by the Commission on Appointments.

MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner
de Castro?

MR. FOZ: Yes.

MR. MAAMBONG: Thank you.

THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

xxx xxx xxx

 MR. REGALADO: Madam President, the Committee feels that this matter should be
submitted to the body for a vote.

MR. DE CASTRO: Thank you.

MR. REGALADO: We will take the amendments one by one. We will first vote on the
deletion of the phrase 'and bureaus on line 26, such that appointments of bureau
directors no longer need confirmation by the Commission on Appointment.

Section 16, therefore, would read: 'The President shall nominate, and with the consent of a
Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . .
.

THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7,
line 26? (Silence) The Chair hears none; the amendments is approved.

xxx xxx xxx

MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28.
1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and
substitute it with HE SHALL ALSO APPOINT ANY.

MR. REGALADO: Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.

MR. DAVIDE: Madam President.

THE PRESIDENT: Commissioner Davide is recognized.

xxx xxx xxx

MR. DAVIDE: So would the proponent accept an amendment to his amendment, so

that after "captain" we insert the following words: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?

FR. BERNAS: It is a little vague.

MR. DAVIDE: In other words, there are positions provided for in the Constitution
whose appointments are vested in the President, as a matter of fact like those of the
different constitutional commissions.

FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive
list of those appointments which constitutionally require confirmation of the
Commission on Appointments,

MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.

FR. BERNAS: Will Commissioner Davide restate his proposed amendment?

 MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.

FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE

CONFIRMATION UNDER THIS CONSTITUTION"?

MR. DAVIDE: Yes, Madam President, that is modified by the Committee.

FR. BERNAS: That will clarify things.

THE PRESIDENT: Does the Committee accept?

MR. REGALADO: Just for the record, of course, that excludes those officers which the
Constitution does not require confirmation by the Commission on Appointments, like
the members of the judiciary and the Ombudsman.

MR. DAVIDE: That is correct. That is very clear from the modification made by
Commissioner Bernas.

THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz

and Davide.

xxx xxx xxx

THE PRESIDENT: Is there any objection to this proposed amendment of

Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair
hears none; the amendment, as amended, is approved 10 (Emphasis supplied).

It is, therefore, clear that appointments to the second and third groups of officers can be made by the
President without the consent (confirmation) of the Commission on Appointments.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16,
Article VII reading-

He (the President) shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law and those whom he may be authorized by law to appoint . . . .
(Emphasis supplied)

with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers
mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second
sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with
the consent (confirmation) of the Commission on Appointments.

Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion he
arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too"
(Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word
"also" in said second sentence means that the President, in addition to nominating and, with the consent of the
Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such
consent (confirmation) the officers mentioned in the second sentence-

Rather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said
second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of
nomination by the President and appointment by the President with the consent of the Commission on Appointments,
whereas, the second sentence speaks only of appointment by the President. And, this use of different language in two
(2) sentences proximate to each other underscores a difference in message conveyed and perceptions established, in
line with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because
the recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose
appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in
rank, compared to some officers whose appointments have to be confirmed by the Commission on Appointments
under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor
requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in the Armed
Forces of the Philippines or a consul in the Consular Service.

But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of
the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the
Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other
officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is
inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what
they were doing and of the foreseable effects thereof.

Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of
such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order
to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by
the President to the positions therein enumerated require the consent of the Commission on Appointments.

As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:

The Congress may, by law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied].

and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this
implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to
confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-
ranked officers should be appointed by the President, subject also to confirmation by the Commission on
Appointments.

The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely
declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in the
courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No reason
however is submitted for the use of the word "alone" in said third sentence.

The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations
of the 1986 Constitutional Commission, that the use of the word alone" after the word "President" in said third
sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in
the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII thereof —

...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments. [Emphasis supplied].

The above provision in the 1935 Constitution appears immediately after the provision which makes practically all
presidential appointments subject to confirmation by the Commission on Appointments, thus-

3. The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of
the Government whose appointments are not herein provided for, and those whom he may be
authorized by law to appoint; ...

In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by
the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide
that Congress may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in rank"
referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the Commission on Appointments, except appointments to offices
expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third
sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest
the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested
in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same
Sec. 16, Article VII.

Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers,
the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments
of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a
literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in
the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive
intent of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first
sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments.

Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau
of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the
Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution
includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission on Appointments.

Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The
original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines,
which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows:

601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief,
to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and
Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance
with the rates prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed
by the proper department head.

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the
Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:

Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one
assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner)
and Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance
with the rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs
shall be appointed by the President of the Philippines (Emphasis supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution,
under which the President may nominate and, with the consent of the Commission on Appointments, appoint the
heads of bureaus, like the Commissioner of the Bureau of Customs.

After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony
with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one
that devolves on the President, as an appointment he is authorizedby law to make, such appointment, however, no
longer needs the confirmation of the Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in
appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination
to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of
the office and to receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate promptly the
issue at bar and to rule that the direct appointment of respondent Salvador Mison as Commissioner of the Bureau of
Customs (without need of submitting a prior nomination to the Commission on Appointments and securing its
confirmation) is valid and in accordance with the President's constitutional authority to so appoint officers of the
Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount public interest and the
exigencies of the public service demand that any doubts over the validity of such appointments be resolved
expeditiously in the test case at bar.

It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of December 1,
1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the Confirmation By the
Commission on Appointments of All Nominations and Appointments Made by the President of the Philippines" was
passed on 23 October 1987 and was "set for perusal by the House of Representatives. " This omission has been
deliberate. The Court has resolved the case at bar on the basis of the issues joined by the parties. The contingency of
approval of the bill mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of
the direct appointment of respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G.
Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the abstract
and without the same being properly raised before it in a justiciable case and after thorough discussion of the various
points of view that would enable it to render judgment after mature deliberation. As stressed at the hearing of
December 8, 1987, any discussion of the reported bill and its validity or invalidity is premature and irrelevant and
outside the scope of the issues resolved in the case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add my
own reading of the Constitutional provision involved.

Section 16, Article VII, of the 1987 Constitution provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution.

He shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress (Emphasis and 1st three
paragraphings, supplied).

The difference in language used is significant. Under the first sentence it is clear that the President "nominates" and
with the consent of the Commission on Appointments "appoints" the officials enumerated. The second sentence,
however, significantly uses only the term "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. Deliberately eliminated was
any reference to nomination.

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence from
confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the term
"appoint" used in said sentence was not meant to include the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were the intent, the same terminologies in the first sentence
could have been easily employed.

There should be no question either that the participation of the Commission on Appointments in the appointment
process has been deliberately decreased in the 1987 Constitution compared to that in the 1935 Constitution, which
required that all presidential appointments be with the consent of the Commission on Appointments.

The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the
dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional
construction is to ascertain the intent of the framers of the Constitution and thereafter to assure its realization (J.M.
Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary
source from which to ascertain constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior Congressional
confirmation, thus:

Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.

The President shall have the power to make appointments during recess of the Congress, whether
voluntary or compulsory, but such appointment shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. 1

By its plain language, the Constitution has intended that only those grouped under the first sentence are required to
undergo a consenting process. This is a significant departure from the procedure set forth in the 1935 Charter:

(3) The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain to commander, and all other officers of
the Government whose appointments are not herein otherwise provided for, and those whom he may
be authorized by law to appoint; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of departments. 2

under which, as noted by the majority, "almost all presidential appointments required the consent (confirmation) of
the Commission on Appointments. 3 As far as the present Charter is concerned, no extrinsic aid is necessary to
ascertain its meaning. Had its framers intended otherwise, that is to say, to require all Presidential appointments
clearance from the Commission on Appointments, they could have simply reenacted the Constitution's 1935
counterpart. 4

I agree that the present Constitution classifies four types of appointments that the President may make: (1)
appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and those of other officers whose appointments are vested in
him under the Constitution, including the regular members of the Judicial and Bar Council, 5 the Chairman and
Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the Commission on
Elections, 7 and the Chairman and Commissioners of the Commission on Audit; 8 (2) those officers whose
appointments are not otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4)
officers lower in rank whose appointments the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a "rather confused
Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a certain extent, to the appointing
clause itself, in the sense that it leaves us for instance, with the incongruous situation where a consul's appointment
needs confirmation whereas that of Undersecretary of Foreign

Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That is a question
addressed to the electorate, and who, despite those "eccentricities," have stamped their approval on that Charter. "The
Court," avers the majority, "will thus construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with what they say and
provide." 10

It must be noted that the appointment of public officials is essentially an exercise of executive power. 11 The fact that
the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms
that "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v.
Philippine Islands 13 on the other hand, underscored the fact that while the legislature may create a public office, it
cannot name the official to discharge the functions appurtenant thereto. And while it may prescribe the qualifications
therefor, it cannot circumscribe such qualifications, which would unduly narrow the President's choice. In that event, it
is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his supremacy as
the appointing authority. In case of doubt, the same should be resolved in favor of the appointing power.

It is the essence of a republican form of government, like ours, that "[e]ach department of the government has
exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no power is
absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only
to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various
departments of the government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against
abuse of the appointing authority, but not as a means with which to hold the Chief Executive hostage by a possibly
hostile Congress, an unhappy lesson as the majority notes, in our history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for instance,
against the enactment of a bill of attainder operates as a bar against legislative encroachment upon both judicial and
executive domains, since the determination of guilt and punishment of the guilty address judicial and executive
functions, respective y. 16

And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In a very real
sense, the power of appointment constitutes a check against legislative authority. In Springer v. Philippine
Islands, 17 we are told that "Congress may not control the law enforcement process by retaining a power to appoint
the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments clause,
rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority
in the interest of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the Government may
discharge that function, least of all Congress. Accordingly, a statute conferring upon a commission the responsibility of
administering that very legislation and whose members have been determined therein, has been held to be repugnant
to the Charter. 21 Execution of the laws, it was held, is the concern of the President, and in going about this business,
he acts by himself or through his men and women, and no other.

The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22 Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the power of
removal . . . [is] incident to the power of appointment, 23 although this has since been tempered in a subsequent
case, 24 where it was held that the President may remove only "purely executive officers, 25 that is, officers holding
office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the President may remove incumbents of offices
confidential in nature, but we likewise made clear that in such a case, the incumbent is not "removed" within the
meaning of civil service laws, but that his term merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution, is
itself subject to some check. Under the Charter, "[tlhe Commission shall act on all appointments submitted to it within
thirty session days of the Congress from their submission. 27 Accordingly, the failure of the Commission to either
consent or not consent to the appointments preferred before it within the prescribed period results in a de facto
confirmation thereof

Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the
predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure whose
parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but stable, society.
As Mr. Justice Holmes had so elegantly articulated:

xxx xxx xxx

The great ordinances of the Constitution do not establish and divide fields of black and white. Even
the more specific of them are found to terminate in a penumbra shading gradually from one extreme
to the other. ... When we come to the fundamental distinctions it is still more obvious that they must
be received with a certain latitude or our government could not go on.

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do
not and cannot carry out the distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. 28

xxx xxx xxx

We are furthermore told:

xxx xxx xxx

... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton might
readily have recognized as suggestive of the mechanism of the heavens," (W. Wilson, Constitutional
Government in the United States 56 (1908)] can represent only the scaffolding of a far more subtle
"vehicle of life (Id. at 192: "The Constitution cannot be regarded as a mere legal document, to be read
as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life.") The great
difficulty of any theory less rich, Woodrow Wilson once warned, "is that government is not a machine,
but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is
accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer pressure of life. No
living thing can have its organs offset against each other as checks, and five." (Id. at 56.) Yet because
no complex society can have its centers of power not "offset against each other as checks," and resist
tyranny, the Model of Separated and Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice. 29

xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the legislature
(the National Assembly under the 1971 draft Constitution) the power to check executive appointments, and hence,
granted the President absolute appointing power. 30 As a delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding officer of most of its plenary session, I am aware that the
Convention did not provide for a commission on appointments on the theory that the Prime Minister, the head of the
Government and the sole appointing power, was himself a member of parliament. For this reason, there was no
necessity for a separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the
assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by the Prime
Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening events
forestalled our parliamentary experiment, and beginning with the 1976 amendments and some 140 or so amendments
thereafter, we had reverted to the presidential form, 32 without provisions for a commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere safeguard against abuse with
respect to those appointments. It does not accord Congress any more than the power to check, but not to deny, the
Chief Executive's appointing power or to supplant his appointees with its own. It is but an exception to the rule. In
limiting the Commission's scope of authority, compared to that under the 1935 Constitution, I believe that the 1987
Constitution has simply recognized the reality of that exception.

GUTIERREZ, JR., J., dissenting:

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land, should never
have any of its provisions interpreted in a manner that results in absurd or irrational consequences.

The Commission on Appointments is an important constitutional body which helps give fuller expression to the
principles inherent in our presidential system of government. Its functions cannot be made innocuous or unreasonably
diminished to the confirmation of a limited number of appointees. In the same manner that the President shares in the
enactment of laws which govern the nation, the legislature, through its Commission on Appointments, gives assurance
that only those who can pass the scrutiny of both the President and Congress will help run the country as officers
holding high appointive positions. The third sentence of the first paragraph — " ... The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards." — specifies only "officers lower in rank" as those who may, by law, be appointed by
the President alone. If as expounded in the majority opinion, only the limited number of officers in the first sentence of
Section 16 require confirmation, the clear intent of the third sentence is lost. In fact both the second and third
sentences become meaningless or superfluous. Superfluity is not to be read into such an important part of the
Constitution.

I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In providing
for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article VIII), the
Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet (Section 3, Article VII)
and, of course, those who by law the President alone may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other appointments need confirmation. Where there is no need for
confirmation or where there is an alternative process to confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.

The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the government it set
up was supposed to be a parliamentary one. The Prime Minister, as head of government, was constantly accountable
to the legislature. In our presidential system, the interpretation which Justice Cruz and myself espouse, is more
democratic and more in keeping with the system of government organized under the Constitution.

I, therefore vote to grant the petition.

CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required only for
the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive departments; (2)
ambassadors, other public ministers and consuls; (3) officers of the armed forces from the rank of colonel or naval
captain; and (4) other officers whose appointments are vested in the President in the Constitution. No confirmation is
required under the second sentence for (1) all other officers whose appointments are not otherwise provided for by
law, and (2) those whom the President may be authorized by law to appoint. Neither is confirmation required by the
third sentence for those other officers lower in rank whose appointment is vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does not
have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his jurisdiction,
must be confirmed. The colonel is by any standard lower in rank than the Chairman of the Commission on Human
Rights, which was created by the Constitution; yet the former is subject to confirmation but the latter is not because he
does not come under the first sentence. The Special Prosecutor, whose appointment is not vested by the Constitution
in the President, is not subject to confirmation under the first sentence, and neither are the Governor of the Central
Bank and the members of the Monetary Board because they fall under the second sentence as interpreted by the
majority opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose
appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation is required
although their rank is decidedly lower.

I do not think these discrepancies were intended by the framers as they would lead to the absurd consequences we
should avoid in interpreting the Constitution.

There is no question that bureau directors are not required to be confirmed under the first sentence of Section 16, but
that is not the provision we ought to interpret. It is the second sentence we must understand for a proper resolution of
the issues now before us. Significantly, although there was a long discussion of the first sentence in the Constitutional
Commission, there is none cited on the second sentence either in the Solicitor-General's comment or in the majority
opinion. We can therefore only speculate on the correct interpretation of this provision in the light of the first and
third sentences of Section 16 or by reading this section in its totality.

The majority opinion says that the second sentence is the exception to the first sentence and holds that the two sets of
officers specified therein may be appointed by the President without the concurrence of the Commission on
Appointments. This interpretation is pregnant with mischievous if not also ridiculous results that presumably were not
envisioned by the framers.

One may wonder why it was felt necessary to include the second sentence at all, considering the majority opinion that
the enumeration in the first sentence of the officers subject to confirmation is exclusive on the basis of expressio unius
est exclusio alterius. If that be so, the first sentence would have been sufficient by itself to convey the Idea that all other
appointees of the President would not need confirmation.

One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still felt
necessary to provide in the third sentence that the appointment of the other officers lower in rank will also not need
confirmation as long as their appointment is vested by law in the President alone. The third sentence would appear to
be superfluous, too, again in view of the first sentence.

More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of those
other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these lower
officers will need the confirmation of the Commission on Appointments while, by contrast, the higher officers
mentioned in the second sentence will not.

Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the bureau
director, will have to be confirmed if the Congress does not vest their appointment in the President alone under the
third sentence. On the other hand, their superior, the bureau director himself, will not need to be confirmed because,
according to the majority opinion, he falls not under the first sentence but the second. This is carefulness in reverse,
like checking the bridesmaids but forgetting the bride.

It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers of the
Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was the
restoration of the Commission on Appointments to check the appointing power which had been much abused by
President Marcos. We are now told that even as this body was revived to limit appointments, the scope of its original
authority has itself been limited in the new Constitution. I have to disagree.

My own reading is that the second sentence is but a continuation of the Idea expressed in the first sentence and
simply mentions the other officers appointed by the President who are also subject to confirmation. The second
sentence is the later expression of the will of the framers and so must be interpreted as complementing the rule
embodied in the first sentence or, if necessary, reversing the original intention to exempt bureau directors from
confirmation. I repeat that there were no debates on this matter as far as I know, which simply means that my humble
conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely
on the same records. At any rate, this view is more consistent with the general purpose of Article VII, which, to repeat,
was to reduce the powers of the Presidency.

The respondent cites the following exchange reported in page 520, Volume II, of the Record of the Constitutional
Convention:

Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, 1
propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute
it with HE SHALL ALSO APPOINT ANY.

Mr. Regalado: Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to
be confirmed by the Commission on Appointments.

However, the records do not show what particular part of Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest that the body was considering the first sentence of the said
section, which I reiterate is not the controversial provision. In any case, although the excerpt shows that the proposed
amendment of Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the final
version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by
the style committee or otherwise replaced for whatever reason will need another surmise on this rather confused
Constitution.

I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best persuasive
only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress is not prevented
from adding to the list of officers subject to confirmation by the Commission on Appointments and cite the debates
on this matter in support of this supposition. It is true enough that there was such a consensus, but it is equally true
that this thinking is not at all expressed, or even only implied, in the language of Section 16 of Article VII. Which
should prevail then the provision as worded or the debates?

It is not disputed that the power of appointment is executive in nature, but there is no question either that it is not
absolute or unlimited. The rule re- established by the new Constitution is that the power requires confirmation by the
Commission on Appointments as a restraint on presidential excesses, in line with the system of checks and balances. I
submit it is the exception to this rule, and not the rule, that should be strictly construed.

In my view, the only officers appointed by the President who are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3) "other officers lower in
rank," but only when their appointment is vested by law in the President alone. It is clear that this enumeration does
not include the respondent Commissioner of Customs who, while not covered by the first sentence of Section 16,
comes under the second sentence thereof as I would interpret it and so is also subject to confirmation.

I vote to grant the petition.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate promptly the
issue at bar and to rule that the direct appointment of respondent Salvador Mison as Commissioner of the Bureau of
Customs (without need of submitting a prior nomination to the Commission on Appointments and securing its
confirmation) is valid and in accordance with the President's constitutional authority to so appoint officers of the
Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount public interest and the
exigencies of the public service demand that any doubts over the validity of such appointments be resolved
expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of December 1,
1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the Confirmation By the
Commission on Appointments of All Nominations and Appointments Made by the President of the Philippines" was
passed on 23 October 1987 and was "set for perusal by the House of Representatives. " This omission has been
deliberate. The Court has resolved the case at bar on the basis of the issues joined by the parties. The contingency of
approval of the bill mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of
the direct appointment of respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G.
Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the abstract
and without the same being properly raised before it in a justiciable case and after thorough discussion of the various
points of view that would enable it to render judgment after mature deliberation. As stressed at the hearing of
December 8, 1987, any discussion of the reported bill and its validity or invalidity is premature and irrelevant and
outside the scope of the issues resolved in the case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add my
own reading of the Constitutional provision involved.

Section 16, Article VII, of the 1987 Constitution provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution.

He shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress (Emphasis and 1st three
paragraphings, supplied).

The difference in language used is significant. Under the first sentence it is clear that the President "nominates" and
with the consent of the Commission on Appointments "appoints" the officials enumerated. The second sentence,
however, significantly uses only the term "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. Deliberately eliminated was
any reference to nomination.

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence from
confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the term
"appoint" used in said sentence was not meant to include the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were the intent, the same terminologies in the first sentence
could have been easily employed.

There should be no question either that the participation of the Commission on Appointments in the appointment
process has been deliberately decreased in the 1987 Constitution compared to that in the 1935 Constitution, which
required that all presidential appointments be with the consent of the Commission on Appointments.

The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the
dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional
construction is to ascertain the intent of the framers of the Constitution and thereafter to assure its realization (J.M.
Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary
source from which to ascertain constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior Congressional
confirmation, thus:

Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.

The President shall have the power to make appointments during recess of the Congress, whether
voluntary or compulsory, but such appointment shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. 1

By its plain language, the Constitution has intended that only those grouped under the first sentence are required to
undergo a consenting process. This is a significant departure from the procedure set forth in the 1935 Charter:

(3) The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain to commander, and all other officers of
the Government whose appointments are not herein otherwise provided for, and those whom he may
be authorized by law to appoint; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of departments. 2

under which, as noted by the majority, "almost all presidential appointments required the consent (confirmation) of
the Commission on Appointments. 3 As far as the present Charter is concerned, no extrinsic aid is necessary to
ascertain its meaning. Had its framers intended otherwise, that is to say, to require all Presidential appointments
clearance from the Commission on Appointments, they could have simply reenacted the Constitution's 1935
counterpart. 4

I agree that the present Constitution classifies four types of appointments that the President may make: (1)
appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and those of other officers whose appointments are vested in
him under the Constitution, including the regular members of the Judicial and Bar Council, 5 the Chairman and
Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the Commission on
Elections, 7 and the Chairman and Commissioners of the Commission on Audit; 8 (2) those officers whose
appointments are not otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4)
officers lower in rank whose appointments the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a "rather confused
Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a certain extent, to the appointing
clause itself, in the sense that it leaves us for instance, with the incongruous situation where a consul's appointment
needs confirmation whereas that of Undersecretary of Foreign

Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That is a question
addressed to the electorate, and who, despite those "eccentricities," have stamped their approval on that Charter. "The
Court," avers the majority, "will thus construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with what they say and
provide." 10

It must be noted that the appointment of public officials is essentially an exercise of executive power. 11 The fact that
the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms
that "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v.
Philippine Islands 13 on the other hand, underscored the fact that while the legislature may create a public office, it
cannot name the official to discharge the functions appurtenant thereto. And while it may prescribe the qualifications
therefor, it cannot circumscribe such qualifications, which would unduly narrow the President's choice. In that event, it
is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his supremacy as
the appointing authority. In case of doubt, the same should be resolved in favor of the appointing power.

It is the essence of a republican form of government, like ours, that "[e]ach department of the government has
exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no power is
absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only
to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various
departments of the government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against
abuse of the appointing authority, but not as a means with which to hold the Chief Executive hostage by a possibly
hostile Congress, an unhappy lesson as the majority notes, in our history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for instance,
against the enactment of a bill of attainder operates as a bar against legislative encroachment upon both judicial and
executive domains, since the determination of guilt and punishment of the guilty address judicial and executive
functions, respective y. 16

And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In a very real
sense, the power of appointment constitutes a check against legislative authority. In Springer v. Philippine
Islands, 17 we are told that "Congress may not control the law enforcement process by retaining a power to appoint
the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments clause,
rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority
in the interest of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the Government may
discharge that function, least of all Congress. Accordingly, a statute conferring upon a commission the responsibility of
administering that very legislation and whose members have been determined therein, has been held to be repugnant
to the Charter. 21 Execution of the laws, it was held, is the concern of the President, and in going about this business,
he acts by himself or through his men and women, and no other.

The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22 Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the power of
removal . . . [is] incident to the power of appointment, 23 although this has since been tempered in a subsequent
case, 24 where it was held that the President may remove only "purely executive officers, 25 that is, officers holding
office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the President may remove incumbents of offices
confidential in nature, but we likewise made clear that in such a case, the incumbent is not "removed" within the
meaning of civil service laws, but that his term merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution, is
itself subject to some check. Under the Charter, "[tlhe Commission shall act on all appointments submitted to it within
thirty session days of the Congress from their submission. 27 Accordingly, the failure of the Commission to either
consent or not consent to the appointments preferred before it within the prescribed period results in a de facto
confirmation thereof

Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the
predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure whose
parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but stable, society.
As Mr. Justice Holmes had so elegantly articulated:

xxx xxx xxx

 The great ordinances of the Constitution do not establish and divide fields of black and white. Even
the more specific of them are found to terminate in a penumbra shading gradually from one extreme
to the other. ... When we come to the fundamental distinctions it is still more obvious that they must
be received with a certain latitude or our government could not go on.

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do
not and cannot carry out the distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. 28

xxx xxx xxx

We are furthermore told:

xxx xxx xxx

... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton might
readily have recognized as suggestive of the mechanism of the heavens," (W. Wilson, Constitutional
Government in the United States 56 (1908)] can represent only the scaffolding of a far more subtle
"vehicle of life (Id. at 192: "The Constitution cannot be regarded as a mere legal document, to be read
as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life.") The great
difficulty of any theory less rich, Woodrow Wilson once warned, "is that government is not a machine,
but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is
accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer pressure of life. No
living thing can have its organs offset against each other as checks, and five." (Id. at 56.) Yet because
no complex society can have its centers of power not "offset against each other as checks," and resist
tyranny, the Model of Separated and Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice. 29

xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the legislature
(the National Assembly under the 1971 draft Constitution) the power to check executive appointments, and hence,
granted the President absolute appointing power. 30 As a delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding officer of most of its plenary session, I am aware that the
Convention did not provide for a commission on appointments on the theory that the Prime Minister, the head of the
Government and the sole appointing power, was himself a member of parliament. For this reason, there was no
necessity for a separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the
assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by the Prime
Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening events
forestalled our parliamentary experiment, and beginning with the 1976 amendments and some 140 or so amendments
thereafter, we had reverted to the presidential form, 32 without provisions for a commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere safeguard against abuse with
respect to those appointments. It does not accord Congress any more than the power to check, but not to deny, the
Chief Executive's appointing power or to supplant his appointees with its own. It is but an exception to the rule. In
limiting the Commission's scope of authority, compared to that under the 1935 Constitution, I believe that the 1987
Constitution has simply recognized the reality of that exception.

GUTIERREZ, JR., J., dissenting:

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land, should never
have any of its provisions interpreted in a manner that results in absurd or irrational consequences.
The Commission on Appointments is an important constitutional body which helps give fuller expression to the
principles inherent in our presidential system of government. Its functions cannot be made innocuous or unreasonably
diminished to the confirmation of a limited number of appointees. In the same manner that the President shares in the
enactment of laws which govern the nation, the legislature, through its Commission on Appointments, gives assurance
that only those who can pass the scrutiny of both the President and Congress will help run the country as officers
holding high appointive positions. The third sentence of the first paragraph — " ... The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards." — specifies only "officers lower in rank" as those who may, by law, be appointed by
the President alone. If as expounded in the majority opinion, only the limited number of officers in the first sentence of
Section 16 require confirmation, the clear intent of the third sentence is lost. In fact both the second and third
sentences become meaningless or superfluous. Superfluity is not to be read into such an important part of the
Constitution.

I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In providing
for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article VIII), the
Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet (Section 3, Article VII)
and, of course, those who by law the President alone may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other appointments need confirmation. Where there is no need for
confirmation or where there is an alternative process to confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.

The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the government it set
up was supposed to be a parliamentary one. The Prime Minister, as head of government, was constantly accountable
to the legislature. In our presidential system, the interpretation which Justice Cruz and myself espouse, is more
democratic and more in keeping with the system of government organized under the Constitution.

I, therefore vote to grant the petition.

CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required only for
the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive departments; (2)
ambassadors, other public ministers and consuls; (3) officers of the armed forces from the rank of colonel or naval
captain; and (4) other officers whose appointments are vested in the President in the Constitution. No confirmation is
required under the second sentence for (1) all other officers whose appointments are not otherwise provided for by
law, and (2) those whom the President may be authorized by law to appoint. Neither is confirmation required by the
third sentence for those other officers lower in rank whose appointment is vested by law in the President alone.

Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does not
have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his jurisdiction,
must be confirmed. The colonel is by any standard lower in rank than the Chairman of the Commission on Human
Rights, which was created by the Constitution; yet the former is subject to confirmation but the latter is not because he
does not come under the first sentence. The Special Prosecutor, whose appointment is not vested by the Constitution
in the President, is not subject to confirmation under the first sentence, and neither are the Governor of the Central
Bank and the members of the Monetary Board because they fall under the second sentence as interpreted by the
majority opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose
appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation is required
although their rank is decidedly lower.

I do not think these discrepancies were intended by the framers as they would lead to the absurd consequences we
should avoid in interpreting the Constitution.

There is no question that bureau directors are not required to be confirmed under the first sentence of Section 16, but
that is not the provision we ought to interpret. It is the second sentence we must understand for a proper resolution of
the issues now before us. Significantly, although there was a long discussion of the first sentence in the Constitutional
Commission, there is none cited on the second sentence either in the Solicitor-General's comment or in the majority
opinion. We can therefore only speculate on the correct interpretation of this provision in the light of the first and
third sentences of Section 16 or by reading this section in its totality.

The majority opinion says that the second sentence is the exception to the first sentence and holds that the two sets of
officers specified therein may be appointed by the President without the concurrence of the Commission on
Appointments. This interpretation is pregnant with mischievous if not also ridiculous results that presumably were not
envisioned by the framers.

One may wonder why it was felt necessary to include the second sentence at all, considering the majority opinion that
the enumeration in the first sentence of the officers subject to confirmation is exclusive on the basis of expressio unius
est exclusio alterius. If that be so, the first sentence would have been sufficient by itself to convey the Idea that all other
appointees of the President would not need confirmation.

One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still felt
necessary to provide in the third sentence that the appointment of the other officers lower in rank will also not need
confirmation as long as their appointment is vested by law in the President alone. The third sentence would appear to
be superfluous, too, again in view of the first sentence.

More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of those
other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these lower
officers will need the confirmation of the Commission on Appointments while, by contrast, the higher officers
mentioned in the second sentence will not.

Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the bureau
director, will have to be confirmed if the Congress does not vest their appointment in the President alone under the
third sentence. On the other hand, their superior, the bureau director himself, will not need to be confirmed because,
according to the majority opinion, he falls not under the first sentence but the second. This is carefulness in reverse,
like checking the bridesmaids but forgetting the bride.

It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers of the
Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was the
restoration of the Commission on Appointments to check the appointing power which had been much abused by
President Marcos. We are now told that even as this body was revived to limit appointments, the scope of its original
authority has itself been limited in the new Constitution. I have to disagree.

My own reading is that the second sentence is but a continuation of the Idea expressed in the first sentence and
simply mentions the other officers appointed by the President who are also subject to confirmation. The second
sentence is the later expression of the will of the framers and so must be interpreted as complementing the rule
embodied in the first sentence or, if necessary, reversing the original intention to exempt bureau directors from
confirmation. I repeat that there were no debates on this matter as far as I know, which simply means that my humble
conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely
on the same records. At any rate, this view is more consistent with the general purpose of Article VII, which, to repeat,
was to reduce the powers of the Presidency.

The respondent cites the following exchange reported in page 520, Volume II, of the Record of the Constitutional
Convention:

Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, 1
propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute
it with HE SHALL ALSO APPOINT ANY.

Mr. Regalado: Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to
be confirmed by the Commission on Appointments.

However, the records do not show what particular part of Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest that the body was considering the first sentence of the said
section, which I reiterate is not the controversial provision. In any case, although the excerpt shows that the proposed
amendment of Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the final
version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by
the style committee or otherwise replaced for whatever reason will need another surmise on this rather confused
Constitution.

I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best persuasive
only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress is not prevented
from adding to the list of officers subject to confirmation by the Commission on Appointments and cite the debates
on this matter in support of this supposition. It is true enough that there was such a consensus, but it is equally true
that this thinking is not at all expressed, or even only implied, in the language of Section 16 of Article VII. Which
should prevail then the provision as worded or the debates?

It is not disputed that the power of appointment is executive in nature, but there is no question either that it is not
absolute or unlimited. The rule re- established by the new Constitution is that the power requires confirmation by the
Commission on Appointments as a restraint on presidential excesses, in line with the system of checks and balances. I
submit it is the exception to this rule, and not the rule, that should be strictly construed.

In my view, the only officers appointed by the President who are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3) "other officers lower in
rank," but only when their appointment is vested by law in the President alone. It is clear that this enumeration does
not include the respondent Commissioner of Customs who, while not covered by the first sentence of Section 16,
comes under the second sentence thereof as I would interpret it and so is also subject to confirmation.

I vote to grant the petition.

 [G.R. No. 91636. April 23, 1992.]

PETER JOHN D. CALDERON, Petitioner, v. BARTOLOME CARALE, in his capacity as Chairman of the National
Labor Relations Commission; EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M.
BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G.
GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN, and
OSCAR N. ABELLA, in their capacity as Commissioners of the National Labor Relations Commission; and
GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, Respondents.

Rafael Antonio M. Santos for Petitioner.

SYLLABUS

1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; COMMISSION ON APPOINTMENT; POWER OF CONFIRMATION OVER

APPOINTMENTS BY THE PRESIDENT RULE. — From the cases of Sarmiento III v. Mison (156 SCRA 549); Mary
Concepcion Bautista v. Salonga (172 SCRA 160), and Teresita Quintos Deles, Et. Al. v. The Commission on
Constitutional Commission, et al (177 SCRA 259), these doctrines are deducible: 1. Confirmation by the Commission on
Appointments is required only for presidential appointees mentioned in the first sentence of Section 16, Article VII,
including, those officers whose appointments are expressly vested by the Constitution itself in the president (like
sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and
Election). 2. Confirmation is not required when the President appoints other government officers whose appointments
are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the
Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates
inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such
appointments, the officers are considered as among those whose appointments are not otherwise provided for by law.

2. ID.; ID.; ID.; CONFIRMATION OF APPOINTMENTS OF THE CHAIRMAN AND MEMBERS OF THE NATIONAL LABOR
RELATIONS COMMISSION AS PROVIDED UNDER R.A. 6715; UNCONSTITUTIONAL; REASONS THEREFOR. — The
second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointment are not otherwise
provided for by law and those whom the President may be authorized by law to appoint. Indubitably, the NLRC
Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more
specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be
authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers
mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the
Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments
of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is
unconstitutional because: 1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by
adding thereto appointments requiring confirmation by the Commission on Appointments; and 2) it amends by
legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the
Commission on Appointments on appointments which are otherwise entrusted only with the President. Deciding on
what law to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court
respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA
6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments
over appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is, as we see it,
beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.

3. ID.; ID.; CANNOT EXPAND A CONSTITUTIONAL PROVISION AFTER THE SUPREME COURT HAS INTERPRETED IT;
ENDENCIA AND JUGO VS. DAVID (193 PHIL. 699) CITED. — In Endencia and Jugo v. David, the Court held: . . . "The rule
is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was
before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a
statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial
function in defining a term. (11 Am. Jur., 914, Emphasis supplied).’The legislature cannot, upon passing law which
violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it
shall be so construed as not to violate the constitutional inhibition." (11 Am., Jur., 919, Emphasis supplied). "We have
already said that the Legislature under our form of government is assigned the task and the power to make and enact
laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution,
which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what
a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and
court decision. Under such a system, a final court determination of a case based on a judicial interpretation of the law
or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or
of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly
violative of the fundamental principles of our constitutional system of government, particularly those governing the
separation of powers."cralaw virtua1aw library

4. ID.; ID.; LIMITATION ON THE POWER OF CONFIRMATION OVER PRESIDENTIAL APPOINTMENTS; PURPOSE. — It can
not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the
framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the
Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading
to may cases of abuse of such power of confirmation. The deliberate limitation on the power of confirmation of the
Commission on Appointments over presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution,
has undoubtedly evoked the displeasure and disapproval of members of the Congress. The solution to the apparent
problem, if indeed a problem, is not judicial or legislative but constitutional. A future constitutional convention or
Congress sitting as a constituent (constitutional) assembly may then consider either a return to the 1935 Constitutional
provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the
duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the
legislature or the executive would want it interpreted.

5. ID.; JUDICIAL DEPARTMENT; SUPREME COURT; DECISIONS THEREOF APPLYING OR INTERPRETING THE
CONSTITUTION; FORM PART OF THE LEGAL SYSTEM OF THE PHILIPPINES. — Supreme Court decisions applying or
interpreting the Constitution shall form part of the legal system of the Philippines. No doctrine or principle of law laid
down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court
sitting en banc.." . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date
that law was originally passed, since this Court’s construction merely establishes the contemporaneous legislative
intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a
restatement of the legal maxim ‘legis interpretado legis vim obtinent’ — the interpretation placed upon the written law
by a competent court has the force of law."cralaw virtua1aw library

6. ID.; ID.; ID.; FUNCTION THEREOF IN PASSING UPON AN ACT OF CONGRESS. — Congress, of course, must interpret
the Constitution, must estimate the scope of its constitutional powers when it sets out to enact legislation and it must
take into account the relevant constitutional prohibitions.." . . The Constitution did not change with public opinion. It is
not only the same words, but the same in meaning . . . and as long as it speaks not only in the same words, but with
the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted and
adopted by the people . . ." The function of the Court in passing upon an act of Congress is to "lay the article of the
Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the
former" and to "announce its considered judgment upon the question."

DECISION

PADILLA, J.:

Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:jgc:chanrobles.com.ph

"SECTION 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.
"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress." 1

The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained in the
aforequoted paragraph 1 Sec. 16, Art. VII, was first construed in Sarmiento III v. Mison 2 as
follows:jgc:chanrobles.com.ph

". . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those
within the first group of appointments where the consent of the Commission on Appointments is required. As a matter
of fact, as already pointed out, while the 1935 Constitution includes ‘heads of bureaus’ among those officers whose
appointments need the consent of the Commission on Appointments, the 1987 Constitution, on the other hand,
deliberately excluded the position of `heads of bureaus’ from appointments that need the consent (confirmation) of
the Commission on Appointments.

". . . Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in
appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination
to the Commission on Appointments for confirmation . . ."cralaw virtua1aw library

". . . In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to
exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to
offices expressly mentioned in the first sentence of Sec. 16, Art. VII. Consequently, there was no reason to use in the
third sentence of Sec. 16, Article VII the word ‘alone’ after the word ‘President’ in providing that Congress may by law
vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of the
departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is
already vested in the President, without need of confirmation by the Commission on Appointments, in the second
sentence of the same Sec. 16, Article VII." (Emphasis supplied).

Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the Chairman of the
Commission on Human Rights. Adhering to the doctrine in Mison, the Court explained:jgc:chanrobles.com.ph

". . . Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the
first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation
of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the CHR is
to be made without the review or participation of the Commission on Appointments. To be more precise, the
appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the
Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections
and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the
consent of the Commission on Appointments. The President appoints the Chairman and Members of the Commission
on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the officers of government ‘whom he (the President) may be
authorized by law to appoint.’ And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to
appoint the Chairman and Members of the Commission on Human Rights."cralaw virtua1aw library

Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, Et. Al. v. The Commission on Constitutional
Commissions, et al, 4 the power of confirmation of the Commission on Appointments over appointments by the
President of sectoral representatives in Congress was upheld because:jgc:chanrobles.com.ph

". . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by
appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is indubitable that
sectoral representatives to the House of Representatives are among the ‘other officers whose appointments are vested
in the President in this Constitution,’ referred to in the first sentence of Section 16, Art. VII whose appointments are
subject to confirmation by the Commission on Appointments."cralaw virtua1aw library

From the three (3) cases above-mentioned, these doctrines are deducible:chanrob1es virtual 1aw library
1. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the
first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by the
Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional
commissions of Audit, Civil Service and Election).

2. Confirmation is not required when the President appoints other government officers whose appointments are not
otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and
Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but
omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the
officers are considered as among those whose appointments are not otherwise provided for by law.

Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. It
provides in Section 13 thereof as follows:jgc:chanrobles.com.ph

"x x x

The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the President,
subject to confirmation by the Commission on Appointments. Appointments to any vacancy shall come from the
nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and Labor Arbiters shall also
be appointed by the President, upon recommendation of the Secretary of Labor and Employment, and shall be subject
to the Civil Service Law, rules and regulations." 5

Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the NLRC
representing the public, workers and employers sectors. The appointments stated that the appointees may qualify and
enter upon the performance of the duties of the office. After said appointments, then Labor Secretary Franklin Drilon
issued Administrative Order No. 161, series of 1989, designating the places of assignment of the newly appointed
commissioners.chanrobles virtual lawlibrary

This petition for prohibition questions the constitutionality and legality of the permanent appointments extended by
the President of the Philippines to the respondents Chairman and Members of the National Labor Relations
Commission (NLRC), without submitting the same to the Commission on Appointments for confirmation pursuant to
Art. 215 of the Labor Code as amended by said RA 6715.

Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. RA 6715
is not, according to petitioner, an encroachment on the appointing power of the executive contained in Section 16,
Art. VII, of the Constitution, as Congress may, by law, require confirmation by the Commission on Appointments of
other officers appointed by the President additional to those mentioned in the first sentence of Section 16 of Article
VII of the Constitution. Petitioner claims that the Mison and Bautista rulings are not decisive of the issue in this case for
in the case at bar, the President issued permanent appointments to the respondents without submitting them to the
CA for confirmation despite passage of a law (RA 6715) which requires the confirmation by the Commission on
Appointments of such appointments.

The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code transgresses Section
16, Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis.
Mison and Bautista laid the issue to rest, says the Solicitor General, with the following exposition:chanrobles.com :
virtual law library

"As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on Appointments is
required exclusively for the heads of executive departments, ambassadors, public ministers, consuls, officers of the
armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the
President by the Constitution, such as the members of the various Constitutional Commissions. With respect to the
other officers whose appointments are not otherwise provided for by the law and to those whom the President may be
authorized by law to appoint, no confirmation by the Commission on Appointments is required.

"Had it been the intention to allow Congress to expand the list of officers whose appointments must be confirmed by
the Commission on Appointments, the Constitution would have said so by adding the phrase "and other officers
required by law" at the end of the first sentence, or the phrase, "with the consent of the Commission on
Appointments" at the end of the second sentence. Evidently, our Constitution has significantly omitted to provide for
such additions.

"The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No. 517 of the
Constitutional Commission reads as follows:chanrob1es virtual 1aw library

‘The President shall nominate and, with the consent of the Commission on Appointments, shall appoint the heads of
the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of captain or commander, and all other officers of the Government whose appointments are not
herein otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by
law vest the appointment of inferior officers in the President alone, in the courts or in the head of the department.’

"Three points should be noted regarding subsection 3 of Section 10 of Article VII of the 1935 Constitution and in the
original text of Section 16 of Article VII of the present Constitution as proposed in Resolution No. 517.

"First, in both of them, the appointments of head of bureaus were required to be confirmed by the Commission on
Appointments.

"Second, in both of them, the appointments of other officers, "whose appointments are not otherwise provided for by
law to appoint" are expressly made subject to confirmation by the Commission on Appointments. However, in the final
version of Resolution No. 517, as embodied in Section 16 of Article VII of the present Constitution, the appointment of
the above mentioned officers (heads of bureaus; other officers whose appointments are not provided for by law; and
those whom he may be authorized by law to appoint) are excluded from the list of those officers whose appointments
are to be confirmed by the Commission on Appointments. This amendment, reflected in Section 16 of Article VII of the
Constitution, clearly shows the intent of the framers to exclude such appointments from the requirement of
confirmation by the Commission on Appointments.

"Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10 of Article VII
thereof.

"Respondent reiterates that if confirmation is required, the three (3) stage process of nomination, confirmation and
appointment operates. This is only true of the first group enumerated in Section 16, but the word nominate does not
any more appear in the 2nd and 3rd sentences. Therefore, the president’s appointment pursuant to the 2nd and 3rd
sentences need no confirmation." 6

The only issue to be resolved by the Court in the present case is whether or not Congress may, by law, require
confirmation by the Commission on Appointments of appointments extended by the President to government officers
additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whose
appointments require confirmation by the Commission on Appointments.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph

To resolve the issue, we go back to Mison where the Court stated:jgc:chanrobles.com.ph

". . . there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will
hereafter refer from time to time, are:chanrob1es virtual 1aw library

‘First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed
forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution;

‘Second, all other officers of the Government whose appointments are not otherwise provided for by law;

‘Third, those whom the President may be authorized by law to appoint;

‘Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.’" 7

Mison also opined:jgc:chanrobles.com.ph

"In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by
the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second
sentence of the section from the same requirement . . ."cralaw virtua1aw library

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointment are not
otherwise provided for by law and those whom the President may be authorized by law to appoint.

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the
Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the
President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among
the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the
Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments
of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is
unconstitutional because:chanrob1es virtual 1aw library

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments
requiring confirmation by the Commission on Appointments; and

2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of
the Commission on Appointments on appointments which are otherwise entrusted only with the President.

Deciding on what law to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The
Court respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of
RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments
over appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is, as we see it,
beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII
thereof.chanroblesvirtualawlibrary

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the
Philippines. 8 No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may
be modified or reversed except by the Court sitting en banc. 9

". . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law was
originally passed, since this Court’s construction merely establishes the contemporaneous legislative intent that the
law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of the
legal maxim ‘legis interpretado legis vim obtinent’ — the interpretation placed upon the written law by a competent
court has the force of law." 10

The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one manner. Can
legislation expand a constitutional provision after the Supreme Court has interpreted it?

In Endencia and Jugo v. David, 11 the Court held:jgc:chanrobles.com.ph

"By legislative fiat as enunciated in section 13, Republic Act No. 590, Congress says that taxing the salary of a judicial
officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of
the phrase ‘which shall not be diminished during their continuance in office,’ found in section 9, Article VIII of the
Constitution, referring to the salaries of judicial officers."cralaw virtua1aw library

x x x

‘The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the
law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as
used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a
judicial function in defining a term. (11 Am. Jur., 914, Emphasis supplied).
‘The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to prevent an
attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional
inhibition.’ (11 Am., Jur., 919, Emphasis supplied).

"We have already said that the Legislature under our form of government is assigned the task and the power to make
and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the
Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law
means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained
its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decision. Under such a system, a final court determination of a case based on a judicial
interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different
interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor
desirable, besides being clearly violative of the fundamental principles of our constitutional system of government,
particularly those governing the separation of powers." 12 (Emphasis supplied)

Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional powers when it sets
out to enact legislation and it must take into account the relevant constitutional prohibitions. 13

". . . The Constitution did not change with public opinion.

It is not only the same words, but the same in meaning . . . and as long as it speaks not only in the same words, but
with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted and
adopted by the people . . ." 14

The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is invoked
beside the statute which is challenged and to decide whether the latter squares with the former" and to "announce its
considered judgment upon the question." 15

It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by
the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the
Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading
to may cases of abuse of such power of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution
provided:jgc:chanrobles.com.ph

"3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of
the executive departments and bureau, officers of the Army from the rank of the colonel, of the Navy and Air Forces
from the rank of captain or commander, and all other officers of the Government whose appointments are not herein
otherwise provided for, and those whom he may be authorized by law to appoint; . . ."cralaw virtua1aw library

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential
appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure and
disapproval of members of the Congress. The solution to the apparent problem, if indeed a problem, is not judicial or
legislative but constitutional. A future constitutional convention or Congress sitting as a constituent (constitutional)
assembly may then consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system
between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to apply the 1987
Constitution in accordance with what it says and not in accordance with how the legislature or the executive would
want it interpreted.

WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the
confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National
Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and
Nocon, JJ., concur.
Bellosillo, J., took no part.

Separate Opinions

GUTIERREZ, JR., J., concurring:chanrob1es virtual 1aw library

When the issues in this petition were first raised in Sarmiento III v. Mison (156 SCRA 549 [1987]), I joined Justice Cruz in
a dissent because I felt that the interpretation of Section 16, Article VII by the majority of the Court results in absurd or
irrational consequences. The framers could not have intended what the majority ruled to be the meaning of the
provision. When the question was again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I reiterated my dissent
and urged a re-examination of the doctrine stated in Sarmiento v. Mison.chanrobles virtual lawlibrary

The issue is again before us. Even as I continue to believe that the majority was wrong in the Sarmiento and Bautista
cases, I think it is time to finally accept the majority opinion as the Court’s ruling on the matter and one which
everybody should respect. There will be no end to litigation if, everytime a high government official is appointed
without confirmation by the Commission on Appointments, another petition is filed with this Court.

I, therefore, VOTE with the majority to DISMISS the PETITION.

CRUZ, J., dissenting:chanrob1es virtual 1aw library

I dissent on the basis of my dissent in Sarmiento v. Mison, which I believe should be re-examined instead of being
automatically re-affirmed simply because of its original adoption. I do not believe we should persist in error on the
ground merely of adherence to judicial precedent, however unsound.
G.R. No. 141141 June 25, 2001

PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR), petitioner,

vs.
CARLOS P. RILLORAZA, respondent.

DE LEON, JR., J.:

Before us is a petition for review on certiorari praying for the reversal of the Decision dated August 31, 1999 1 as well as
the Resolution dated November 29, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 51803.

The facts are undisputed:

On November 5, 1997, administrative charges for dishonesty, grave misconduct, conduct prejudicial to the best
interest of the service, and loss of confidence, were brought against respondent Carlos P. Rilloraza, a casino operations
manager of petitioner PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR). Respondent allegedly
committed the following acts:

Summary description of charge(s):

Failure to prevent an irregularity and violations of casino and regulations committed by co-officers during his
shift on October 9, 1997.

1. During his shift of 6:00 a.m.–2:00 p.m. on October 9, 1997, four (4) personal checks with a total value
of Pesos: Five Million (P5,000,000) were issued by a small-time financier/player and were facilitated by
a COM with the Treasury Division which enabled the small-time financier/player to withdraw and
receive said amount. The facilitation of the checks was not authorized by the Senior Branch Manager
(SBM) or the Branch Manager for Operations (BMO) and the COM who facilitated the checks was not
on duty then.

2. He even facilitated one (1) of the personal checks with a value of Pesos: Five Hundred Thousand
(P500,000.00).

3. He failed to stop a top-ranking officer from placing bets over and above the allowable limit of
P5,000.00 per deal, he failed to stop the same officer from playing in the big tables and lastly, he
allowed the same officer to play beyond the allowable time limit of 6:00 a.m.

Respondent duly filed his answer during an investigation conducted by petitioner’s Corporate Investigation Unit. He
narrated the events that transpired:

"When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I saw BM RICHARD
SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside Area 3. While inside the Area 3, GAM RENE
QUITO approached me with a check worth P500,000.00 requested by a customer for endorsement to the
Treasury. Since I’ve been out of Manila branch for 2 years and I’ve just been recalled to this branch for only
more than 3 weeks, I’m not quite familiar with the systems and I don’t know this customer. I immediately
approached COM CARLOS GONZALES, who at that time was still around, to verify regarding the said check
and his immediate reply was "IT’S OKAY AND GOOD AND IT WAS GUARANTEED BY BM SYHONGPAN’. In fact,
I reconfirmed it again with COM GONZALES since he is more familiar with the systems and customers, he
answered me the same. So I gave the approval to GAM QUITO for endorsement. When I went in the office, I
instructed OOS GILBERT CABANA to beep SBM VIC ADVINCULA and BMO DARIO CORDERO to call office
"ASAP" because I wanted to relay this matter to them and there were no reply from both of them. I instructed
OOS CABANA to send messages again to SBM & BMO, but still I received no reply. It was until after noontime
that BMO CORDERO returned my call and I reported the incident to him. When I was at home at around 3:30
p.m. SBM ADVINCULA returned my call and I reported the incident. I also relayed the incident to SBM REYES.

While during my rounds, I went down to the New VIP area and there I saw BM SYHONGPAN sitting at TABLE
#3(BB) and he was holding house cards at that time. I approached and stopped him but he reacted that the
 bet was not his but to a CUSTOMER’S. I took his words because as a subordinate, I respected him as one of
our superior who very well know all our company’s policy esp. that an officer is not allowed to play at BIG
table and are only allowed to bet with a maximum of P5,000.00 only. So I believe it was not his bet but the
said customer. At that time there was no way for me to stop the game because I saw the said customer,
named MS. CORAZON CASTILLO, whom I don’t know her [sic] since I was out of Manila Branch 2 years, and
whom BM SYHONGPAN was referring to as the player, has a lot of chips worth about P7 Million in front of her
and was betting P1.5M on the banker side which was over the maximum table limit by P500,000.00. I know we
are allowed to authorize approval by raising the betting limits as per request of the playing customers.

After the game, the chips were encashed and I instructed GAM J. EUGENIO to accompany BM SYHONGPAN to
his room because he was too drunk. When I was doing my rounds again, that’s how I found out from rumors
within the gaming areas that this MS. CASTILLO was used by BM SYHONGPAN and COM GONZALES to played
[sic] in behalf of them the whole time. And I also learned that there were four checks endorsed during my shift
which I facilitated only one check worth P500,000.00 after I verified and confirmed it with COM GONZALES.
With regards to the other 3 checks, I have no knowledge about it since they, BM SYHONGPAN and COM
GONZALES, kept it a secret from me. When GAM EUGENIO returned from the room of BM SYHONGPAN he
handed me some cash, which according to him, was given by BM SYHONGPAN as ‘BALATO’. I did not accept
the money because at that moment I was so mad that they involved me beyond my innocence since I am new
in the branch. I then instructed GAM EUGENIO to return the money to BM SYHONGPAN. (sic)

Finding Rilloraza’s explanation unsatisfactory, the PAGCOR Board handed down a Resolution on December 2, 1997
dismissing respondent and several others from PAGCOR, on the grounds of dishonesty, grave misconduct and/or
conduct prejudicial to the best interest of the service and loss of confidence, effective December 5, 1997. The Board
also denied respondent’s motion for reconsideration in a Resolution dated December 16, 1997.

Respondent appealed to the Civil Service Commission. On November 20, 1998, the Commission issued Resolution No.
983033,2 the dispositive portion of which provides, to wit:

WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the Commission finds appellant
guilty only of Simple Neglect of Duty and metes out upon him the penalty of one month and one day
suspension. The assailed Resolution of PAGCOR Board of Directors is thus modified.

The Commission denied petitioner’s motion for reconsideration in Resolution No. 990465 dated February 16, 1999. 3

On appeal, the Court of Appeals affirmed the resolution of the Commission. 4 The appellate court ordered petitioner to
reinstate private respondent with payment of full backwages plus all tips, bonuses and other benefits accruing to his
position and those received by other casino operations managers for the period starting January 5, 1998 until his
actual reinstatement. Petitioner filed a motion for reconsideration, 5 which was denied by the appellate court in the
assailed resolution of November 29, 1999.6

Hence, the instant petition.

PAGCOR avers that:

THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED TO CONSIDER THAT RESPONDENT
WAS A CONFIDENTIAL APPOINTEE OR EMPLOYEE WHOSE TERM HAD EXPIRED BY REASON OF LOSS OF
CONFIDENCE.

II

THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC RESOLUTIONS MODIFYING THE
PENALTY METED OUT ON RESPONDENT FROM DISMISSAL TO SUSPENSION, DESPITE THE GRAVITY OR
SERIOUSNESS OF THE OFFENSES COMMITTED BY THE LATTER ON ACCOUNT OF THE EXTRAORDINARY
RESPONSIBILITIES AND DUTIES REPOSED IN THE RESPONDENT BY VIRTUE OF HIS POSITION.
The wellspring of stability in government service is the constitutional guarantee of entrance according to merit and
fitness and security of tenure, viz:

xxx xxx xxx

(2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far
as practicable, and, except to positions which are policy-determining, primarily confidential, or highly
technical, by competitive examination.

(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by
law.7

xxx xxx xxx

In the case at bar, we are basically asked to determine if there is sufficient cause to warrant the dismissal, not merely
the suspension, of respondent who, petitioner maintains, occupies a primarily confidential position. In this connection,
Section 16 of Presidential Decree No. 18698 provides:

Exemption.—All positions in the Corporation, whether technical, administrative, professional or managerial are
exempt from the provisions of the Civil Service Law, rules and regulations, and shall be governed only by the
personnel management policies set by the Board of Directors. All employees of the casinos and related
services shall be classified as "Confidential" appointee.

Petitioner argues that pursuant to the aforequoted provision, respondent is a primarily confidential employee. Hence,
he holds office at the pleasure of the appointing power and may be removed upon the cessation of confidence in him
by the latter. Such would not amount to a removal but only the expiration of his term. However, there should be no
lingering doubt as to the true import of said Section 16 of P.D. No. 1869. We have already definitively settled the same
issue in Civil Service Commission v. Salas,9 to wit:

In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of
Presidential Decree No. 1869 may no longer be applied in the case at bar because the same is deemed to have
been repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution. This is not completely
correct. On this point, we approve the more logical interpretation advanced by the CSC to the effect that
"Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and
Rules has been amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292
(Administrative Code of 1987).

However, the same cannot be said with respect to the last portion of Section 16 which provides that "all
employees of the casino and related services shall be classified as ‘confidential’ appointees." While such
executive declaration emanated merely from the provisions of Section 2, Rule XX of the Implementing Rules of
the Civil Service Act of 1959, the power to declare a position as policy-determining, primarily confidential or
highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book V
of Executive Order No. 292 or the Administrative Code of 1987. This later enactment only serves to bolster the
validity of the categorization made under Section 16 of Presidential Decree No. 1869. Be that as it may, such
classification is not absolute and all-encompassing.

Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances when a
position may be considered primarily confidential: Firstly, when the President, upon recommendation of the
Commissioner of Civil Service, has declared the position to be primarily confidential; and, secondly, in the
absence of such declaration, when by the nature of the functions of the office there exists "close intimacy"
between the appointee and appointing power which insures freedom of intercourse without embarrassment
or freedom from misgivings of betrayals of personal trust or confidential matters of state.

At first glance, it would seem that the instant case falls under the first category by virtue of the express
mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis, however, of the second
category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the non-
competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-
competitive or unclassified service or those which are policy-determining, primarily confidential, or highly
technical in nature." In the case of Piñero, et al. vs. Hechanova, et al., the Court obliged with a short discourse
there on how the phrase "in nature" came to find its way into the law, thus:

"The change from the original wording of the bill (expressly declared by law x x x to be policy-
determining, etc.) to that finally approved and enacted (‘or which are policy determining, etc. in
nature’) came about because of the observations of Senator Tañada, that as originally worded the
proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential
or policy-determining, which should not be the case. The Senator urged that since the Constitution
speaks of positions which are ‘primarily confidential, policy-determining or highly technical in nature,’
it is not within the power of Congress to declare what positions are primarily confidential or policy-
determining. ‘It is the nature alone of the position that determines whether it is policy-determining or
primarily confidential.’ Hence, the Senator further observed, the matter should be left to the ‘proper
implementation of the laws, depending upon the nature of the position to be filled,’ and if the
position is ‘highly confidential’ then the President and the Civil Service Commissioner must implement
the law.

To a question of Senator Tolentino, ‘But in positions that involved both confidential matters and
matters which are routine, x x x who is going to determine whether it is primarily confidential?’
Senator Tañada replied:

‘SENATOR TAÑADA: Well, at the first instance, it is the appointing power that determines that:
the nature of the position. In case of conflict then it is the Court that determines whether the
position is primarily confidential or not." xxx

Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position
which finally determines whether a position is primarily confidential, policy-determining or highly technical. And
the Court in the aforecited case explicitly decreed that executive pronouncements, such as Presidential Decree
No. 1869, can be no more than initial determinations that are not conclusive in case of conflict. It must be so, or
else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the
protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution. In other words, Section 16 of
Presidential Decree No. 1869 cannot be given a literally stringent application without compromising the
constitutionally protected right of an employee to security of tenure. [italics supplied]

The doctrinal ruling enunciated in Piñero finds support in the 1935 Constitution and was reaffirmed in the
1973 Constitution, as well as in the implementing rules of Presidential Decree No. 807, or the Civil Service
Decree of the Philippines. It may well be observed that both the 1935 and 1973 Constitutions contain the
provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as to those which
are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to
merit and fitness, to be determined as far as practicable by competitive examination." Corollarily, Section 5 of
Republic Act No. 2260 states that "the non-competitive or unclassified service shall be composed of positions
expressly declared by law to be in the non-competitive or unclassified service or those which are policy-
determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules in
the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as
to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only
according to merit and fitness to be determined as far as practicable by competitive examination." Let it be
here emphasized, as we have accordingly italicized them, that these fundamental laws and legislative or
executive enactments all utilized the phrase "in nature" to describe the character of the positions being
classified.1âwphi1.nêt

The question that may now be asked is whether the Piñero doctrine—to the effect that notwithstanding any
statutory classification to the contrary, it is still the nature of the position, as may be ascertained by the court
in case of conflict, which finally determines whether a position is primarily confidential, policy-determining or
highly technical—is still controlling with the advent of the 1987 Constitution and the Administrative Code of
1987, Book V of which deals specifically with the Civil Service Commission, considering that from these later
enactments, in defining positions which are policy-determining, primarily confidential or highly technical, the
phrase "in nature" was deleted.

We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the
plenary session of the 1986 Constitutional Commission on the Civil Service provisions, to wit:

"MR. FOZ: Which department of government has the power or authority to determine whether a
position is policy-determining or primarily confidential or highly technical?

FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the
final decision is done by the court. The Supreme Court has constantly held that whether or not a position
is policy-determining, primarily confidential or highly technical, it is determined not by the title but by
the nature of the task that is entrusted to it. For instance, we might have a case where a position is
created requiring that the holder of that position should be a member of the Bar and the law classifies
this position as highly technical. However, the Supreme Court has said before that a position which
requires mere membership in the Bar is not a highly technical position. Since the term ‘highly
technical’ means something beyond the ordinary requirements of the profession, it is always a
question of fact.

MR. FOZ: Does not Commissioner Bernas agree that the general rule should be that the merit system
or the competitive system should be upheld?

FR. BERNAS: I agree that that should be the general rule; that is why we are putting this as an
exception.

MR. FOZ: The declaration that certain positions are policy-determining, primarily confidential or highly
technical has been the source of practices which amount to the spoils system.

FR. BERNAS: The Supreme Court has always said that, but if the law of the administrative agency says
that a position is primarily confidential when in fact it is not, we can always challenge that in court. It is
not enough that the law calls it primarily confidential to make it such; it is the nature of the duties which
makes a position primarily confidential.

MR. FOZ: The effect of a declaration that a position is policy-determining, primarily confidential or
highly technical—as an exception—is to take it away from the usual rules and provisions of the Civil
Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available
to the ordinary run of government employees and officers.

FR. BERNAS: As I have already said, this classification does not do away with the requirement of merit
and fitness. All it says is that there are certain positions which should not be determined by competitive
examination.

For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to
undergo a competitive examination before appointment? Or a confidential secretary or any position in policy-
determining administrative bodies, for that matter? There are other ways of determining merit and fitness than
competitive examination. This is not a denial of the requirement of merit and fitness."

It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987
Constitution in providing for the declaration of a position as policy-determining, primarily confidential or
highly technical is to exempt these categories from competitive examination as a means for determining merit
and fitness. It must be stressed further that these positions are covered by security of tenure, although they are
considered non-competitive only in the sense that appointees thereto do not have to undergo competitive
examinations for purposes of determining merit and fitness. [italics supplied]

In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated
that "the declaration of a position as primarily confidential if at all, merely exempts the position from the civil
service eligibility requirement." Accordingly, the Piñero doctrine continues to be applicable up to the present
 and is hereby maintained. Such being the case, the submission that PAGCOR employees have been declared
confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830 must be
rejected.

Justice Regalado’s incisive discourse yields three (3) important points: first, the classification of a particular position as
primarily confidential, policy-determining or highly technical amounts to no more than an executive or legislative
declaration that is not conclusive upon the courts, the true test being the nature of the position. Second, whether
primarily confidential, policy-determining or highly technical, the exemption provided in the Charter pertains to
exemption from competitive examination to determine merit and fitness to enter the civil service. Such employees are
still protected by the mantle of security of tenure. Last, and more to the point, Section 16 of P.D. 1869, insofar as it
declares all positions within PAGCOR as primarily confidential, is not absolutely binding on the courts.

Considerations vary so as to make a position primarily confidential. Private secretaries are indisputably primarily
confidential employees.10 Those tasked to provide personal security to certain public officials have also been deemed
to hold primarily confidential positions11 for obvious reasons: the former literally are responsible for the life and well-
being of the latter. Similar treatment was accorded to those occupying the posts of city legal officer12 and provincial
attorney,13 inasmuch as the highly privileged nature of the lawyer-client relationship mandates that complete trust and
confidence must exist betwixt them. National interest has also been adjudged a factor, such that the country’s
permanent representative to the United Nations was deemed to hold her post at the pleasure of the Chief Executive. 14

As casino operations manager, Rilloraza’s duties and responsibilities are:

JOB SUMMARY: The Casino Operations Manager directs, controls and supervises the Operations Division of
the branch. He reports directly to the Branch Manager or to the Branch Manager for Operations in Metro
Manila branches.

DUTIES AND RESPONSIBILITIES:

1. Formulates marketing programs and plans of action for branch gaming operations in order to
optimize revenue.

2. Institutes and maintains a healthy, organized, mentally alert, and highly motivated human resource
for effective and efficient branch gaming operations performance.

3. Takes measures to maintain and uphold the integrity of the casino games.

4. Reviews, analyzes, and evaluates gaming table and slot machine operations reports, including
income performance.

5. Submits periodic reports to the Branch Manager.

6. Directs the opening and closing of gaming table and slot machine areas.

7. Directs the setting-up, closure or suspension of operations of gaming tables and slot machine units
when deemed necessary.

8. Controls the requisition, storage, and issuance of playing cards, gaming equipment and
paraphernalia, operations keys, and accountable receipts and slips.

9. Ensures that gaming operations personnel adhere to the established House Rules, company policies
and procedures.

10. Ensures that quality and efficient service is extended to casino patrons in accordance with the
established House Rules, company policies and procedures.

11. Directs and controls all activities of the Card Shuffling Center and the Card Distribution Room.
 12. Issues directives, memoranda, and other official communications on branch gaming operations
matters.

13. Directs the daily and periodic performance evaluation of operations personnel.

14. Requires written statements from operations personnel regarding disputes, reported irregularities
and violations of House Rules, company policies and procedures.

15. Issues or recommends disciplinary sanctions against delinquent operations personnel, as well as
commendations to deserving ones.

16. Upon the Branch Manager’s approval, issues preventive suspension to erring employees pending
investigation.

17. Effects immediate changes in House Rules when deemed necessary, subject to management
review.

18. Approves table refill, chip yield, and dropbox yield transactions, as well as the payment for
progressive link super jackpot awards.

19. Directs the cancellation of progressive link super jackpot combinations.

20. Signs chip checks in behalf of the Branch Manager.

21. Approves complimentary food and beverages to deserving players and evaluates the same for the
possible extension of other amenities.

22. Settles disputes arising from gaming operations that have not been effectively settled by gaming
managers and supervisors, and enforces decisions on the interpretation of House Rules, company
policies, and procedures.

23. Recommends to the Branch Manager the banning of undesirable players.

24. Orders the removal of customers or employees from the table gaming (sic) and slot machine area
for justifiable reasons.

25. Implements contingency plans in case of emergencies to ensure the security and safety of
customers and staff.

26. Acts on customer complaints, suggestions, and observations.

27. Chairs the Branch Infractions Committee, the Variance Committee, and other ad hoc committees of
the Operations Division.

28. Represents the Operations Division in Branch Management panel meetings.

29. Apprises the Branch Manager of any incident of doubtful nature and of developments that require
his immediate attention.

30. Performs other duties as may be designated by the Branch Manager.

Undoubtedly, respondent’s duties and responsibilities call for a great measure of both ability and dependability. They
can hardly be characterized as routinary, for he is required to exercise supervisory, recommendatory and disciplinary
powers with a wide latitude of authority. His duties differ markedly from those we previously ruled as not primarily
confidential: for instance, PAGCOR’s Internal Security Staff;15 Management and Audit Analyst I of the Economic
Intelligence and Investigation Bureau;16 a Special Assistant to the Governor of the Central Bank;17 the Legal Staff of the
Provincial Attorney;18 members of the Customs Police;19 the Senior Executive Assistant, Clerk I, Supervising Clerk I and
Stenographer;20 and a Provincial Administrator.21 In this sense, he is a tier above the ordinary rank-and-file in that his
appointment to the position entails faith and confidence in his competence to perform his assigned tasks. Lacking,
therefore, is that amplitude of confidence reposed in him by the appointing power so as to qualify his position as
primarily confidential. Verily, we have observed that:

[i]ndeed, physicians handle confidential matters. Judges, fiscals and court stenographers generally handle
matters of similar nature. The Presiding and Associate Justices of the Court of Appeals sometimes investigate,
by designation of the Supreme Court, administrative complaints against judges of first instance, which are
confidential in nature. Officers of the Department of Justice, likewise, investigate charges against municipal
judges. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice charges against
members of the Bar. All of these are "confidential" matters, but such fact does not warrant the conclusion that
the office or position of all government physicians and all Judges, as well as the aforementioned assistant
solicitors and officers of the Department of Justice are primarily confidential in character.22

We further note that a casino operations manager reports directly to the Branch Manager or, in Metro Manila
branches, to the Branch Manager for Operations. It does not appear from the record to whom the Branch Manager (or
the Branch Manager for Operations, as the case may be) reports. It becomes unmistakable, though, that the stratum
separating the casino operations manager from reporting directly to the higher echelons renders remote the
proposition of proximity between respondent and the appointing power. There is no showing of that element of trust
indicative of a primarily confidential position, as we defined it in De los Santos v. Mallare, 23 to wit:

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of
a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse
without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of
state.

Necessarily, the point of contention now is whether there was cause for the respondent’s separation from the service.
On this point, having analyzed both parties’ arguments, we find that the Civil Service Commission did not err in
declaring that Rilloraza was liable only for simple neglect of duty. In the first place, there is no evidence to sustain a
charge of dishonesty. As the latter term is understood, it implies a:

Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity. Lack of honesty, probity or
integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray. 24

In the case at bar, respondent’s explanation fails to evince an inclination to lie or deceive, or that he is entirely lacking
the trait of straightforwardness. We concur with the appellate court’s finding, thus:

Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at Table No. 3BB,
respondent Rilloraza at once, told him to stop. However, Syhongpan explained that he was merely playing for
a customer, Ms. Corazon Castillo who was seated also at the table. After observing the large number of chips
in front of Ms. Castillo estimated at around P7M, respondent became convinced of the clarification given by
Branch Manager Syhongpan and he must have relied also on the word of said top ranking PAGCOR official
whose representation must ordinarily be accepted and accorded respect and credence by a subordinate like
him. xxx

More importantly, the PAGCOR Adjudication Committee concluded that respondent actually attempted to
stop the game where Syhongpan was playing which was even utilized as basis by the PAGCOR Board in
dismissing respondent. xxx

xxx xxx xxx xxx

The allegation that respondent Rilloraza allowed Syhongpan to place bets over and above the allowable limit
of P5,000.00 per deal is not anchored on a correct premise. Respondent Rilloraza has steadfastly maintained
that he is of the belief that BM Syhongpan is not playing for himself but for Ms. Castillo. Thus, if Syhongpan is
merely acting for the real casino player, then the policy of not allowing any PAGCOR official to bet beyond
 P5,000.00 has no application. Respondent Rilloraza believed in good faith that the bet was not BM
Syhongpan’s but of Ms. Castillo and should not be unduly punished for his honest belief. The same reason
exists for the claim that respondent allowed BM Syhongpan to play beyond 6:00 a.m. This is non sequitur since
Rilloraza never entertained the idea that Syhongpan was the gambler.

Lastly, if only to consummate respondent’s alleged dishonesty and grave misconduct by corruptly profiting
from said incident, he could have easily pocketed the ‘balato’ given by Syhongpan, but he never did, and in
fact, returned the money. xxx

xxx xxx xxx xxx

On the facilitation of the swap of a P500,000.00 personal check for chips, this Court, after considering the
parties involved and the circumstances of the case, believes that respondent Rilloraza has judiciously
performed all the acts necessary to protect the interests of PAGCOR and has acted as a prudent and
reasonable man. It is evident that respondent had the authority to approve the exchange of checks for
gambling chips. In the exercise of such discretion, We find that the approval by Rilloraza of the exchange was
done with caution and circumspect [sic]. When he was approached by GAM Quito for endorsement of said
personal checks per request of a customer, he immediately approached COM Gonzales to verify the check
who assured him that the check was good and in fact guaranteed by Mr. Syhongpan, Davao City Branch
Manager of PAGCOR. To be sure, he even reconfirmed the same with Gonzales as he is more familiar with the
systems and the customers since he has been recalled to the branch for only three (3) weeks. After approving
the endorsement, he immediately tried to contact SBM Advincula and BMO Cordero, to notify them of his
action but none of them called back. In the afternoon, both returned the call and were informed by
respondent of the exchange of the chips for the check and presumably, the former ratified or acquiesced to
the action of respondent since there was no objection or complaint about the matter. xxx

These same findings negate the conclusion that respondent is guilty of misconduct or conduct prejudicial to the best
interest of the service. In Manuel v. Calimag, Jr.,25 we defined misconduct, thus:

Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words:
"Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a
misconduct such as affects his performance of his duties as an officer and not such only as affects his
character as a private individual. In such cases, it has been said at all times, it is necessary to separate the
character of the man from the character of the officer x x x. It is settled that misconduct, misfeasance, or
malfeasance warranting removal from office of an officer, must have direct relation to and be connected with
the performance of official duties amounting either to maladministration or willful, intentional neglect and
failure to discharge the duties of the office x x x.

Differently propounded in Canson v. Garchitorena, et al.,26 misconduct is "any unlawful conduct on the part of a person
concerned in the administration of justice prejudicial to the rights of parties or to the right determination of the cause.
It generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional
purpose. The term, however, does not necessarily imply corruption or criminal intent. On the other hand, the term ‘gross’
connotes something ‘out of all measure; beyond allowance; not to be excused; flagrant; shameful’." From the facts
given, absent is that element of intent to do wrong against petitioner.

CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty as a less grave offense punishable
as a first offense by suspension of one (1) month and one (1) day to six (6) months. 27 In the imposition of the proper
penalty, Section 54 thereof provides, as follows: (a) the minimum of the penalty shall be imposed where only
mitigating and no aggravating circumstances are present; (b) the medium of the penalty shall be imposed where no
mitigating and aggravating circumstances are present; and (c) the maximum of the penalty shall be imposed where
only aggravating and no mitigating circumstances are present. In turn, the circumstances that may be properly
considered are:

Section 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. – In the determination of

the penalties to be imposed, mitigating, aggravating and alternative circumstances attendant to the
commission of the offense shall be considered.1âwphi1.nêt
 The following circumstances shall be appreciated:

a. Physical illness

b. Good faith

c. Taking undue advantage of official position

d. Taking undue advantage of subordinate

e. Undue disclosure of confidential information

f. Use of government property in the commission of the offense

g. Habituality

h. Offense is committed during office hours and within the premises of the office or building

i. Employment of fraudulent means to commit or conceal the offense

j. Length of service in the government

k. Education, or

l. Other analogous circumstances

Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper party,
otherwise, said circumstances shall not be considered in the imposition of the proper penalty. The
Commission, however, in the interest of substantial justice may take and consider these circumstances.

We find that the Civil Service Commission, as affirmed by the Court of Appeals, correctly attributed good faith on the
part of respondent. Accordingly, the modified penalty imposed by the Civil Service Commission on the respondent
which was affirmed by the Court of Appeals, was proper under the premises.

WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated August 31, 1999 as well as the
Resolution dated November 29, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 51803 are
hereby AFFIRMED. No costs.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing, Buena, JJ., concur.

G.R. No. 120193 March 6, 1996

LUIS MALALUAN, petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents.

HERMOSISIMA, JR., J.:p

Novel is the situation created by the decision of the Commission on Elections which declared the winner in an election
contest and awarded damages, consisting of attorney's fees, actual expenses for xerox copies, unearned salary and
other emoluments for the period, from March, 1994 to April, 1995, en masse denominated as actual damages,
notwithstanding the fact that the electoral controversy had become moot and academic on account of the expiration
of the term of office of the Municipal Mayor of Kidapawan, North Cotabato.

Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary restraining order and
writ of preliminary injunction, seeking the review of the decision en banc1 of the Commission of Elections (COMELEC)
denying the motion for reconsideration of the decision2 of its First Division,3 which reversed the decision4 of the
Regional Trial Court5 in the election case6 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 municipality7 because expiration of the term of office contested in the election protest has the effect of
rendering the same moot and academic.8

When the appeal from a decision in an election case has already become moot, the case being an election protest
involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the
rendering of a decision on the merits would be of practical value. 9 This rule we established in the case of Yorac
vs. Magalona 10 which we dismissed because it had been mooted by the expiration of the term of office of the
Municipal Mayor of Saravia, Negros Occidental. This was the object of contention between the parties therein. The
recent case of Atienza vs. Commission on Elections, 11 however, squarely presented the situation that is the exception to
that rule.
Comparing the scenarios in those two cases, we explained:

Second, petitioner's citation of Yorac vs. Magalona as authority for his main proposition is grossly
inappropriate and misses the point in issue. The sole question in that case centered on an election
protest involving the mayoralty post in Saravia, Negros Occidental in the general elections of 1955,
which was rendered moot and academic by the expiration of the term of office in December, 1959. It
did not involve a monetary award for damages and other expenses incurred as a result of the election
protest. In response to the petitioner's contention that the issues presented before the court were
novel and important and that the appeal should not be dismissed, the Court held — citing the same
provision of the Rules of Court upon which petitioner staunchly places reliance — that a decision on
the merits in the case would have no practical value at all, and forthwith dismissed the case for being
moot. That is not the case here. In contradistinction to Yorac, a decision on the merits in the case at
bench would clearly have the practical value of either sustaining the monetary award for damages or
relieving the private respondent from having to pay the amount thus awarded. 12

Indeed, this petition appears now to be moot and academic because the herein parties are contesting an elective post
to which their right to the office no longer exists. However, the question as to damages remains ripe for adjudication.
The COMELEC found petitioner liable for attorney's fees, actual expenses for xerox copies, and unearned salary and
other emoluments from March, 1994 to April, 1995, en masse denominated as actual damages, default in payment by
petitioner of which shall result in the collection of said amount from the bond posted by petitioner on the occasion of
the grant of his motion for execution pending appeal in the trial court. Petitioner naturally contests the propriety and
legality of this award upon private respondent on the ground that said damages have not been alleged and proved
during trial.

What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion in awarding
the aforecited damages in favor of private respondent.

The Omnibus Election Code provides that "actual or compensatory damages may be granted in all election contests or
in quo warranto proceedings in accordance with law." 13 COMELEC Rules of Procedure provide that "in all election
contests the Court may adjudicate damages and attorney's fees as it may deem just and as established by the
evidence if the aggrieved party has included such claims in his pleadings." 14 This appears to require only that the
judicial award of damages be just and that the same be borne out by the pleadings and evidence The overriding
requirement for a valid and proper award of damages, it must be remembered, is that the same is in accordance with
law, specifically, the provisions of the Civil Code pertinent to damages.

Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages." The Civil Code further prescribes the proper setting for allowance of
actual or compensatory damages in the following provisions:

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith
is liable shall be those that are the natural and probable consequences of the breach of the obligation,
and which the parties have foreseen or could have reasonably foreseen at the time the obligation was
constituted.

In case of fraud, bad faith, malice or wanton attitude, the obliger shall be responsible for all damages
which may be reasonably attributed to the non-performance of the obligation.

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is not necessary that such
damages have been foreseen or could have reasonably been foreseen by the defendant.

Considering that actual or compensatory damages are appropriate only in breaches of obligations in cases of
contracts and quasi-contracts and on the occasion of crimes and quasi-delicts where the defendant may be held liable
for all damages the proximate cause of which is the act or omission complained of, the monetary claim of a party in an
election case must necessarily be hinged on either a contract or a quasi-contract or a tortious act or omission or a
crime, in order to effectively recover actual or compensatory damages. 15 In the absence of any or all of these, "the
claimant must be able to point out a specific provision of law authorizing a money claim for election protest expenses
against the losing party" 16. For instance, the claimant may cite any of the following provisions of the Civil Code under
the chapter on human relations, which provisions create obligations not by contract, crime or negligence, but directly
by law:

Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.

xxx xxx xxx

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs any of the following rights and liberties of
another person shall be liable to the latter for damages:

xxx xxx xxx

(5) Freedom of suffrage;

In any of the cases referred to in this article, whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. . . . 17

Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00 constituting salary
and other emoluments from March, 1994 to April, 1995 that would have accrued to him had there not been an
execution of the trial court's decision pending appeal therefrom in the COMELEC.

The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of an election
protest, an elective official who has been proclaimed by the COMELEC as winner in an electoral contest and who
assumed office and entered into the performance of the duties of that office, is entitled to the compensation,
emoluments and allowances legally provided for the position. 18 We ratiocinated in the case of Rodriguez vs. Tan that:

This is as it should be. This is in keeping with the ordinary course of events. This is simple justice. The
emolument must go to the person who rendered the service unless the contrary is provided. There is
no averment in the complaint that he is linked with any irregularity vitiating his election. This is the
policy and the rule that has been followed consistently in this jurisdiction in connection with positions
held by persons who had been elected thereto but were later ousted as a result of an election protest.
The right of the persons elected to compensation during their incumbency has always been
recognized. We cannot recall of any precedent wherein the contrary rule has been upheld. 19

In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while the general rule
is that the ousted elective official is not obliged to reimburse the emoluments of office that he had received
before his ouster, he would be liable for damages in case he would be found responsible for any unlawful or
tortious acts in relation to his proclamation. We quote the pertinent portion of that opinion for emphasis:

Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which led
to and resulted in his proclamation as senator-elect, when in truth and in fact he was not so elected,
he would be answerable for damages. In that event the salary, fees and emoluments received by or
paid to him during his illegal incumbency would be a proper item of recoverable damage. 20

The criterion for a justifiable award of election protest expenses and salaries and emoluments, thus, remains to
be the existence of a pertinent breach of obligations arising from contracts or quasi-contracts, tortious acts,
crimes or a specific legal provision authorizing the money claim in the context of election cases. Absent any of
these, we could not even begin to contemplate liability for damages in election cases, except insofar as
 attorney's fees are concerned, since the Civil Code enumerates the specific instances when the same may be
awarded by the court.

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly
valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) In actions for indemnity under workmen's compensation and employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of
litigation should be recovered. 21

Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of respondent
COMELEC for awarding actual damages to private respondent in the form of reimbursement for attorney's fees, actual
expenses for xerox copies, and salary and other emoluments that should have accrued to him from March, 1994 to
April, 1995 had the RTC not issued an order for execution pending appeal.

The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory damages in this
wise:

. . . under the present legal setting, it is more difficult than in the past to secure an award of actual or
compensatory damages either against the protestant or the protestee because of the requirerments of
the law.

In the instant case, however, We are disposed to conclude that the election protest filed by the
protestant is clearly unfounded. As borne out by the results of the appreciation of ballots conducted
by this Commission, apparently the protest was filed in bad faith without sufficient cause or has been
filed for the sole purpose of molesting the protestee-appellant for which he incurred expenses. The
erroneous ruling of the Court which invalidated ballots which were clearly valid added more injury to
the protestee-appellant. This would have been bearable since he was able to perfect his appeal to this
Commission. The final blow, however, came when the Court ordered the execution of judgment
pending appeal which, from all indications, did not comply with the requirements of Section 2, Rule 39
of the Rules of Court. There was no good and special reason at all to justify the execution of judgment
pending appeal because the protestee's winning margin was 149 votes while that of the protestant —
after the Court declared him a winner — was only a margin of 154 votes. Clearly, the order of
execution of judgment pending appeal was issued with grave abuse of discretion.
For these reasons, protestee-appellant seeks to recover the following:

1. Actual damages representing attorney's fees for the new counsel who handled the Appeal and the
Petition for Certiorari before the Court of Appeals . . . P372,500.00

2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P1.50 . . .
P11,235.00

3. Actual expenses for xerox copying of ballots . . . P3,919.20

4. Actual damages for loss of salary and other emoluments since March 1994 as per attached
Certification issued by the Municipal Account of Kidapawan . . . P96,832.00 (up to October 1994 only)

Under Article 2208 of the New Civil Code attorney's fees and expenses of litigation can be recovered
(as actual damages) in the case of clearly unfounded civil action or proceeding. And, while the case
of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries and allowances (as
damages) from elected officials who were later ousted, under the theory that persons elected has (sic)
a right to compensation during their incumbency, the instant case is different. The protestee-appellant
was the one elected. He was ousted not by final judgment bur by an order of execution pending
appeal which was groundless and issued with grave abuse of discretion. Protestant-appellee occupied
the position in an illegal manner as a usurper and, not having been elected to the office, but merely
installed through a baseless court order, he certainly had no right to the salaries and emoluments of
the office.

Actual damages in the form of reimbursement for attorney's fees (P372,500.00), actual expenses for
xerox copies (P15,154.00), unearned salary and other emoluments from March 1994 to April 1995 or
14 months at P12,104.00 a month (P169,456.00), totalled P557,110.00. To (sic) this amount, however,
P300,000.00 representing that portion of attorney's fees denominated as success fee' must be
deducted this being premised on a contingent event the happening of which was uncertain from the
beginning. Moral damages and exemplary damages claimed are, of course, disallowed not falling
within the purview of Section 259 of the Omnibus Election Code.

It goes without saying that if the protestant-appellee fails to pay the actual damages of P257,110.00,
the amount will be assessed, levied and collected from the bond of P500,000.00 which he put up
before the Court as
a condition for the issuance of the order of execution of judgment pending appeal. 22

Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The COMELEC en banc,
however, did not find any new matter substantial in nature, persuasive in character or sufficiently provocative to
compel reconsideration of said decision and accordingly affirmed in toto the said decision. Hence, this petition raises,
among others, the issue now solely remaining and in need of final adjudication in view of the mootness of the other
issues anent petitioner's right to the contested office the term for which has already expired.

We have painstakingly gone over the records of this case and we can attribute to petitioner no breach of contract or
quasi-contract; or tortious act nor crime that may make him liable for actual damages. Neither has private respondent
been "able to point out to a specific provision of law authorizing a money claim for election protest expenses against
the losing party." 23

We find respondent COMELEC's reasoning in awarding the damages in question to be fatally flawed. The COMELEC
found the election protest filed by the petitioner to be clearly unfounded because its own appreciation of the
contested ballots yielded results contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a
reasonable observation not without basis, it is nonetheless fallacious to conclude a malicious intention on the part of
petitioner to molest private respondent on the basis of what respondent COMELEC perceived as an erroneous ruling
of the trial court. In other words, the actuations of the trial court, after the filing of a case before it, are its own, and any
alleged error on its part does not, in the absence of clear proof, make the suit "clearly unfounded" for which the
complainant ought to be penalized. Insofar as the award of protest expenses and attorney's fees are concerned,
therefore we find them to have been awarded by respondent COMELEC without basis, the election protest not having
been a clearly unfounded one under the aforementioned circumstances.

Respondent COMELEC also found the order granting execution of judgment pending appeal to be defective because
of alleged non-compliance with the requirement that there be a good and special reason 24 to justify execution
pending appeal. We, however, find that the trial court acted judiciously in the exercise of its prerogatives under the law
in issuing the order granting execution pending appeal. First, it should be noted that the applicability of the provisions
of the Rules of Court, relating to execution pending appeal, has ceased to be debatable after we definitively ruled
in Garcia vs. de Jesus 25 that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order
executions pending appeal upon good reasons stated in a special order, may be made to apply by analogy or
suppletorily to election contests decided by them." 26 It is not disputed that petitioner filed a bond in the amount of
P500,000.00 as required under the Rules of Court.

It is also now a settled rule that "as much recognition should be given to the value of the decision of a judicial body as
a basis for the right to assume office as that given by law to the proclamation made by the Board of Canvassers." 27

. . . Why should the proclamation by the board of canvassers suffice as basis of the right to assume
office, subject to future contingencies attendant to a protest, and not the decision of a court of
justice? Indeed . . . the board of canvassers is composed of persons who are less technically prepared
to make an accurate appreciation of the ballots, apart from their being more apt to yield extraneous
considerations . . . the board must act summarily, practically raising (sic) against time, while, on the
other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better
technical preparation and background, apart from his being allowed ample time for conscientious
study and mature deliberation before rendering judgment . . . . 28

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

Finally, we deem the award of salaries and other emoluments to be improper and lacking legal sanction. Respondent
COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez vs. Tan 30 because while in that case the
official ousted was the one proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner only by
the trial court and assumed office by virtue of an order granting execution pending appeal. Again, respondent
COMELEC sweepingly concluded, in justifying the award of damages, that since petitioner was adjudged the winner in
the elections only by the trial court and assumed the functions of the office on the strength merely of an order
granting execution pending appeal, the petitioner occupied the position in an illegal manner as a usurper.

We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act officially without any
color of right, 31 the petitioner exercised the duties of an elective office under color of election thereto. 32 It matters not
that it was the trial court and not the COMELEC that declared petitioner as the winner, because both, at different
stages of the electoral process, have the power to so proclaim winners in electoral contests. At the risk of sounding
repetitive, if only to emphasize this point, we must reiterate that the decision of a judicial body is no less a basis than
the proclamation made by the COMELEC-convened Board of Canvassers for a winning candidate's right to assume
office, for both are undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in
good faith, has had possession of the office and had discharged the duties pertaining thereto" 33 and is thus "legally
entitled to the emoluments of the office." 34
To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual
and compensatory damages in accordance with law. The victorious party in an election case cannot be indemnified for
expenses which he has incurred in an electoral contest in the absence of a wrongful act or omission or breach of
obligation clearly attributable to the losing party. Evidently, if any damage had been suffered by private respondent
due to the execution of judgment pending appeal, that damage may be said to be equivalent to damnum absque
injuria, which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage without
violation of a legal right, or a wrong done to a man for which the law provides no remedy. 35

WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision dated May 5, 1995 that
private respondent Joseph Evangelista is the winner in the election for mayor of the Municipality of Kidapawan, North
Cotabato, that portion of the decision is deemed moot and academic because the term of office for mayor has long
expired. That portion of the decision awarding actual damages to private respondent Joseph Evangelista is hereby
declared null and void for having been issued in grave abuse of discretion and in excess of jurisdiction.

SO ORDERED.

Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and
Panganiban, JJ., concur.