1. Meaning of Public Office
Bruno 0. Aparri, as General Manager of the National
G.R. No. L-30057 January 31, 1984
BRUNO O. APARRI, petitioner,
vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in
substitution for REMEDIOS O. FORTICH, as Chairman,
ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO
PLANTILLA and SEVERO YAP, as members of the Board of
Directors of the defunct National Resettlement and Rehabilitation
Administration (NARRA), respondents.
Enrique D. Tayag for petitioner.
Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.
MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the then
Court of Appeals (now Intermediate Appellate Court under BP 129)
dated September 24, 1968, affirming the decision of the then Court of
First Instance (now Regional Trial Court), the dispositive portion of
which is as follows:
WHEREFORE, the judgment of the lower court insofar
as it decrees the dismissal of the present petition for
mandamus is hereby affirmed, without pronouncement
as to costs (p. 50, rec.).
The facts of the case are as follows:
On January 15, 1960, private respondents (as members of the Board
of Directors of the defunct National Resettlement and Rehabilitation
Administration created under Republic Act No. 1160, approved June
18, 1954 — NARRA) approved the following resolution:
RESOLUTION NO. 13 (Series of 1960)
RESOLVED, as it is hereby resolved, to appoint Mr.
Resettlement and Rehabilitation Administration
(NARRA) with all the rights, prerogatives and
compensation appurtenant thereto to take effect on
January 16, 1960);
RESOLVED FURTHER, as it is hereby resolved, to
inform the President of the Philippines of the above
appointment of Mr. Aparri (p. 2, rec.).
Pursuant thereto, private respondent Remedies O. Fortich, in her
capacity as Chairman of the NARRA Board, appointed petitioner
Bruno O. Aparri as reflected in the following letter:960
Mr. Bruno O. Aparri c/o NARRA, Manila
SIR:
You are hereby appointed as GENERAL MANAGER in
the National Resettlement and Rehabilitation
Administration (NARRA) with compensation at the rate
of TWELVE THOUSAND (P12,000.00) PESOS per
annum the appointment to take effect January
16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).
The power of the Board of Directors of the NARRA to appoint the
general manager is provided for in paragraph (2),Section 8, Republic
Act No. 1160 (approved June 18, 1954), to wit:
Sec. 8. Powers and Duties of the Board of Directors. —
The Board of Directors shall have the following powers
and duties: ...
2) To appoint and fix the term of office of General
Manager ..., subject to the recommendation of the
Office of Economic Coordination and the approval of
the President of the Philippines, .... The Board, by a
majority vote of all members, may, for cause, upon
recommendation of the Office of Economic
Coordination and with the approval of the President of
 the Philippines, suspend and/or remove the General
Manager and/or the Assistant General Manager (p. 46,
rec., emphasis supplied).
On March 15, 1962, the same Board of Directors approved the
following resolution:
RESOLUTION NO. 24 (Series of 1962)
WHEREAS, the Chairman of the Board has transmitted
to the Board of Directors the desire of the Office of the
President Malacanang, Manila, to fix the term of
office of the incumbent General Manager up to the
close of office hours on March 31, 1962, in accordance
with the provision of Section 8, sub-section 2 of R.A.
No. 1160;
NOW, THEREFORE, BE IT RESOLVED, as it is
hereby resolved, that the Board of Directors hereby fix,
as it is hereby fixed, the term of office of the incumbent
General Manager of the National Resettlement and
Rehabilitation Administration (NARRA) to March 31,
1962 (pp. 6-7, rec., emphasis supplied).
Petitioner filed a petition for mandamus with preliminary injunction
with the then Court of First Instance of Manila on March 29, 1962. The
petition prayed to annul the resolution of the NARRA Board dated
March 15, 1962, to command the Board to allow petitioner to continue
in office as General Manager until he vacates said office in
accordance with law and to sentence the private respondents jointly
and severally to pay the petitioner actual damages in the sum of
P95,000.00, plus costs.
On August 8, 1963, when the case was still pending decision in the
lower court, Republic Act No. 3844, otherwise known as the
Agricultural Land Reform Code, took effect. The said law abolished
the NARRA (Sec. 73, R.A. 3844) and transferred its functions and
powers to the Land Authority. On October 21, 1963, the then Court of
First Instance of Manila rendered judgment, finding "that this case has
become academic by reason of the approval of the Agricultural Land
Reform Code (Republic Act No. 3844) and thereby dismissing the
instant petition without pronouncement as to costs" (p. 5, rec.).
On appeal to the then Court of Appeals, the appellate tribunal
speaking through then Mr. Justice Antonio C. Lucero, affirmed the
decision of the lower court. in dismissing the petition for mandamus.
Pertinent provisions of the decision are as follows:
xxx xxx xxx
In the light of the foregoing facts, it is evident that
Bruno O. Aparri accepted the position of General
Manager without fixed term and his appointment is, in
essence, terminable at the pleasure of the appointing
power which, in this case, is the Board of Directors.
Where, as in the case at bar, the appointing officer, that
is, the Board of Directors, had fixed the term of office of
the incumbent Manager to end on March 31, 1962, the
replacement of Bruno O. Aparri is not removal but by
reason of the term of his office which is one of the
recognized modes of terminating official
relations. Considering that the term of office of the
General Manager of the NARRA is not fixed by law nor
has it been fixed by the Board of Directors at the time
of his appointment although it had the power to do so,
it is obvious that the term of office of herein petitioner
Bruno O. Aparri expired on March 31, 1962 and his
right to hold the said office was thereby extinguished.
In other words, Bruno O. Aparri cessation from office
invokes no removal but merely the expiration of the
term of office which was within the power of the Board
of Directors to fix. Hence, Bruno O. Aparri continues
only for so long as the term of his office has not ended
(Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683)
[Decision of the Court of Appeals, pp. 48-49, rec.,
emphasis supplied].
The motion for reconsideration by petitioner in the then Court of
Appeals was denied on January 10, 1969.
On January 20, 1969, the petitioner filed a petition for certiorari to
review the decision of the then Court of Appeals dated September 24,
1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in
a resolution dated January 27, 1969 (p. 55, rec.); but on motion for
reconsideration filed on February 11, 1969, the petition was given due
course (p. 66, rec.).
The only legal issue sought to be reviewed is whether or not Board
Resolution No. 24 (series of 1962) was a removal or dismissal of
petitioner without cause. No. he was removed before the expiration of
his term
WE affirm. WE hold that the term of office of the petitioner expired on
March 31, 1962.
A public office is the right, authority, and duty created and conferred
by law, by which for a given period, either fixed by law or enduring at
the pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of the government, to be exercise
by him for the benefit of the public ([Mechem Public Offices and
Officers,] Sec. 1). The right to hold a public office under our political
system is therefore not a natural right. It exists, when it exists at all
only because and by virtue of some law expressly or impliedly
creating and conferring it (Mechem Ibid., Sec. 64). There is no such
thing as a vested interest or an estate in an office, or even an
absolute right to hold office. Excepting 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 (42 Am. Jur.
881).
The National Resettlement and Rehabilitation Administration
(NARRA) was created under Republic Act No. 1160 (approved June
18,1954), which provides that:
Sec. 2. NATIONAL RESETTLEMENT AND
REHABILITATION ADMINISTRATION — ... there is
hereby created a corporation to be known as National
Resettlement and Rehabilitation Administration
hereafter referred to as "NARRA" to perform under the
supervision and control of the President of the
Philippines, through the Office of Economic
Coordinator all the duties and functions of the Bureau
of Lands as provided for in Commonwealth Act
numbered Six Hundred and Ninety-one, as amended,
and such other duties as are hereinafter specified in
this Act. It shall be headed by a General Manager and
an Assistant Manager who shall be appointed as
hereinafter provided (emphasis supplied).
Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the
Board of Directors of the NARRA the power "to appoint and fix the
term of office of the general manager ... subject to the
recommendation of Economic Coordination and the approval of the
President of the Philippines" (emphasis supplied).
By "appointment" is meant the act of designation by the executive
officer, board or body, to whom that power has been delegated, of the
individual who is to exercise the functions of a given office (Mechem
op. cit., Sec. 102). When the power of appointment is absolute, and
the appointee has been determined upon, no further consent or
approval is necessary, and the formal evidence of the appointment,
the commission, may issue at once. Where, however, the assent or
confirmationof some other officer or body is required, the Commission
can issue or the appointment is complete only when such assent or
condition is obtained (People vs. Bissell, 49 Cal. 407). To constitute
an "appointment" to office, there must be some open, unequivocal act
of appointment on the part of the appointing authority empowered to
make it, and it may be said that an appointment to office is made and
is complete when the last act required of the appointing authority has
been performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III
App. 3d 580). In either case, the appointment becomes complete
when the last act required of the appointing power is performed (State
vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65).
The petitioner was appointed as general manager pursuant to
Resolution No. 13 (series of 1960 — approved on January 15, 1960)
of the Board of Directors. A careful perusal of the resolution points out
the fact that the appointment is by itself incomplete because of the
lack of approval of the President of the Philippines to such
appointment. Thus, We note that Resolution No. 13 states:
xxx xxx xxx
... RESOLVED FURTHER, as it is hereby resolved, to
inform the President of the Philippines of the above
appointment of Mr. Aparri (p. 2, rec.).
Presumably, the Board of Directors of the NARRA expected that such
appointment be given approval by the then President. Lacking such
approval by the President as required by the law (par. 2, Sec. 8 of
R.A. 1160), the appointment of petitioner was not complete. The
petitioner can, at best, be classified as a de facto officer because he
assumed office "under color of a known appointment or election, void
because the officer was not eligible or because there was a want of
power in the electing body, or by reasons of some defect or
irregularity in its exercise, such ineligibility, want of power, or defect
being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am.
Rep. 409).
However, such appointment was made complete upon approval of
Resolution No. 24 (series of 1962-approved March 15, 1962) wherein
the President submitted to the Board his "desire" to fix the term of
office of the petitioner up to the close of office hours on March 31,
1962. The questioned resolution corrected whatever requisite lacking
in the earlier Resolution No. 13 of the respondent Board. Resolution
No. 24, approved by the respondent Board and pursuant to "the
desire of the President" legally fixed the term of office of petitioner as
mandated by paragraph 2, Section 8 of Republic Act 1160.
The word "term" in a legal sense means a fixed and definite period of
time which the law describes that an officer may hold an office
(Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67
CJS OFFICERS, secs. 42, 54[1]). According to Mochem, the term of
office is the period during which an office may be held. Upon the
expiration of the officer's term, unless he is authorized by law to hold
over, his rights, duties and authority as a pubic officer must ipso
facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public
Officers, the most natural and frequent method by which a public
officer ceases to be such is by the expiration of the term for which he
was elected or appointed. The question of when this event has
occurred depends upon a number of considerations, the most
prominent of which, perhaps, are whether he was originally elected or
appointed for a definite term or for a term dependent upon some act
or event ... (Mechem op. cit., Sec. 384).
It is necessary in each case to interpret the word "term" with the
purview of statutes so as to effectuate the statutory scheme pertaining
to the office under examination (Barber vs. Blue, 417 P.2D 401, 51
Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not
fixed by law. However, the power to fix the term is vested in the Board
of Directors subject to the recommendation of the Office of Economic
Coordination and the approval of the President of the Philippines.
Resolution No. 24 (series of 1962) speaks of no removal but an
expiration of the term of office of the petitioner. The statute is
undeniably clear. It is the rule in statutory construction that if the
words and phrase of a statute are not obscure or ambiguous, its
meaning and the intention of the legislature must be determined from
the language employed, and, where there is no ambiguity in the
words, there is no room for construction (Black on Interpretation of
Laws, Sec. 51). The courts may not speculate as to the probable
intent of the legislature apart from the words (Hondoras vs. Soto, 8
Am. St., Rep. 744). The reason for the rule is that the legislature must
be presumed to know the meaning of words, to have used words
advisedly and to have expressed its intent by the use of such words
as are found in the statute (50 Am. Jur. p. 212).
Removal entails the ouster of an incumbent before the expiration of
his term (Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in
this case was not removed before the expiration of his term. Rather,
his right to hold the office ceased by the expiration on March 31, 1962
of his term to hold such office.
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY
AFFIRMED. WITHOUT COSTS.
SO ORDERED.
2. Public Office as a Public Trust
[A.M. No. P-04-1925 : December 16, 2004]
COURT PERSONNEL OF THE OFFICE OF THE CLERK OF
COURT OF THE REGIONAL TRIAL COURT-San Carlos
City, Complainants, v. OSCAR LLAMAS, Respondent.
DECISION

PANGANIBAN, J.:
Public service requires integrity and discipline. For this
reason, public servants must exhibit at all times the highest
sense of honesty and dedication to duty. By the very nature
of their duties and responsibilities, government employees
must faithfully adhere to, hold sacred and render inviolate
the constitutional principle that a public office is a public
trust; that all public officers and employees must at all times
be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency.1
The Case
This case originated from a Complaint lodged by the court
employees of the Office of the Clerk of Court (OCC) of the
Regional Trial Court (RTC) of San Carlos City, Pangasinan,
against Oscar T. Llamas, cash clerk II of the same Office,
charging respondent with discourteous, disrespectful and
unbecoming conduct.
The Complaint had initially been referred for investigation,
report and recommendation to Dagupan City RTC Judge Luis
M. Fontanilla, who prayed for and was granted inhibition
from hearing the case2 on the ground that two of the
signatories of the Complaint were close to him. The case was
thereafter referred to Vice-Executive Judge Silverio Q.
Castillo of the same RTC,3 who likewise prayed for and was
granted, on justifiable grounds, inhibition therefrom.4 The
case was finally referred to Judge Crispin C. Laron of the
Dagupan RTC, Branch 43.5
The Facts
In a letter addressed to Chief Justice Hilario G. Davide Jr.
dated January 25, 2000, herein complainants,6 all of whom
are employed in the Office of the Clerk of Court of the RTC of
San Carlos City, Pangasinan, labeled respondent as a
"troublesome and arrogant court employee."
Respondent Oscar Llamas is a brother of Judge Victor T.
Llamas, who used to preside over Branch 56 of the San
Carlos RTC. Animosity between Judge Llamas and the OCC
personnel started when the latter, headed by Atty. Omega L.
Moises, testified in an immorality case filed against the
former. Respondent sympathized with his brother and
showed hostility towards his co-employees.
During the hearing of the instant administrative Complaint,
Gemma F. Adriano - - one of the complainants - - testified
that while inside the office, respondent showed signs of
belligerence towards the other employees by slamming his
drawer, the window jalousies, as well as the stapler and the
puncher. There were occasions when he would look at them
with a hostile expression that would cause anxiety to three
female employees who happened to be in the office at the
time.
According to Adriano, respondent also became disrespectful
to Atty. Moises by acting belligerently even in the latter's
presence. He would also frequently leave the office without
permission, only to be seen drinking wine with his brother-
judge during office hours. With the rising tension in the
office, complainants finally decided to file a Complaint
against respondent. From then on, he refused to talk to
them.
Myrna de la Cruz, a utility worker, testified that sometime in
May of 1998, she had looked for Oscar Llamas within the
court premises, because a person was asking for him in
connection with some cadastral cases. While going down the
stairs of the Hall of Justice, Cruz sprained her foot. She
finally found him drinking liquor at Annie's Canteen, where
he allegedly had the habit of drinking with other court
personnel and with litigants. She thus felt relieved when he
was transferred to the Dagupan RTC.
Manuel de Guzman corroborated the testimony of his-co-
complainants. He said that on January 15, 2000 (a
Saturday), while on duty, respondent challenged the brother
of Atty. Moises to a fistfight. On the same occasion,
respondent called her (Atty. Moises) a traitor for causing the
withholding of his Judiciary Development Fund (JDF)
allowance for the last quarter of 1999. Apparently, she had
indicated his frequent absences in his Daily Time Report
(DTR), thereby preventing him from receiving the allowance.
Atty. Moises added that respondent had been the cash clerk
of the Office of the Clerk of Court from 1997 to 2001 until his
transfer to the Municipal Trial Court in Cities (Branch 1) of
Dagupan in May 2001. She corroborated the testimony of the
other complainants by saying that his attitude was probably
due to the fact that some of her friends at the RTC (Branch
57) had filed charges against his brother, Judge Victor T.
Llamas, for immorality and grave misconduct.
Atty. Moises repeatedly warned respondent about his
unprofessional attitude in no less than three Memoranda. The
first Memorandum called his attention to his drinking
sessions during office hours and his highly hostile attitude.
She would always request a member of her staff to call him
whenever he was drinking outside the Justice Hall.
The second Memorandum, dated December 2000, called the
attention of respondent to his tardiness and frequent
absences. Atty. Moises introduced in evidence several
documents showing that due to his absences and tardiness,
he did not receive his productivity bonus for two years, from
1997 to 1999; his JDF allowance for the last quarter of 1999;
and his salary for February 2000. He was also required to
refund the sum of P5,000 for the month of March 2000. The
payroll showed that, for the separate periods July 1 to 15
and November 1 to 15, the sums of P3,845.92 and P801.03,
respectively, were deducted from his salary.
Atty. Moises testified further that on November 22, 1999,
respondent altered his leave form by making it appear that
he had applied for a leave from November 22 to December 2,
1999; actually, his application was only for November 23 and
24, 1999. Upon discovering the alteration, she issued
forthwith the third Memorandum dated December 8, 1999.
Respondent did not appear during the hearing, but submitted
his Counter-Affidavit with Position Paper,7 basically denying
the allegations leveled against him. He asserted that he was
a quiet, humble, hardworking and cooperative employee,
who performed any task assigned to him. He explained his
absences by saying that he had to drive his brother, Judge
Llamas, to Manila where the hearing of the immorality case
was being conducted.
Respondent denied ever drinking alcohol during office hours,
alleging that the charges against him were bereft of evidence
and had no basis whatsoever. He also attached an Affidavit
executed by Jose P. Cabugao, one of the complainants.
Cabugao said therein that he had been deceived into signing
the Letter-Complaint against respondent. Allegedly,
complainants had been convincing other court employees to
join them in their effort to destroy the reputation of Judge
Llamas.
Respondent also attached his letter to Chief Justice Hilario G.
Davide Jr. dated November 18, 1999, requesting that the
former be detailed to Dagupan City because of the hostile
acts of some of herein complainants - - Atty. Moises,
Emmanuel Lacandola, Manuel Marquez and Angelito Dispo.
Such acts allegedly included repeatedly spitting on the desk
of respondent, placing his chair on top of his desk upside
down, carrying firearms inside the office, making threatening
remarks against him, staring provocatively, and slamming
doors or desk drawers when he was around.
Respondent pointed out that the prayer for his detail or
transfer had become moot in view of his transfer to the
Metropolitan Trial Court of Dagupan City and his subsequent
resignation from the judiciary. He added, "Granting, without
necessarily admitting that [he] is guilty of misconduct, the
maximum penalty imposable would be dismissal from service
[which] would not be possible for the reason that respondent
had already resigned from his position."8
Evaluation and Recommendation of the
Office of the Court Administrator
The Office of the Court Administrator (OCA) found the acts
attributed to respondent supported by substantial evidence.
It opined that "[a] cash clerk, being a judicial employee, is
expected to act with prudence, restraint, courtesy and
dignity. Deviation from these salutary norms undeniably
constitutes misconduct prejudicial to the best interest of the
service."9 The OCA asked the Court to adopt the
recommendation of Investigating Judge Crispin C. Laron that
respondent be dismissed from service.
The Court's Ruling
We agree with the findings of the OCA, but modify the
penalty.
Administrative Liability
The acts described in the Complaint, the testimony of
complainants, and the OCA's findings of fact can be lumped
into the following categories: 1) discourtesy and disrespect
to superiors and co-employees, 2) alcohol drinking, during
office hours, 3) tardiness, 4) absenteeism and 5) falsification
of the leave form.
The Court notes that respondent never successfully disputed
any of the foregoing charges against him. His Answer
contained mere blanket denials and countercharges against
complainants. While he dismissed the Complaint by alleging
that it was only a malicious plot to discredit him, the Court
cannot turn a blind eye to the strong evidence they have
piled up against him.
In her December 2, 1999 Memorandum addressed to
respondent, Atty. Moises called his attention to the number
of absences he had incurred since January 1999, totaling 48
as well as to 20 instances of his tardiness. 10 In another
Memorandum dated May 26, 1998, she reminded him that
drinking liquor during office hours was considered an offense
under the Civil Service Law; thus, she directed him to
observe working hours and official time.11
As regards the charge of drunkenness during official time, its
veracity is difficult to determine under the circumstances.
Respondent attached to his Answer the Affidavits of denial
executed by the canteen-owners12 in whose stores he
allegedly had his drinking sprees.
Nonetheless, he could not explain away the deductions in his
salary or his failure to receive his JDF and productivity pay,
which had allegedly been caused by his frequent absences
and tardiness. As a result of these and of his loitering around
the premises of the Hall of Justice even during office hours,
his co-workers had to take over and perform his designated
tasks. His explanation that he incurred his absences while
driving for his brother-judge deserves short shrift. As a
public servant, the former owes his loyalty, not to his brother
or to any other family member; but, rather, to the institution
of which respondent is a part and, ultimately, to the public
he is sworn to serve.
In the third Memorandum dated December 9, 1999, Atty.
Moises further called the attention of respondent to the
unauthorized alterations or erasures in his leave form.13 He
was never able to refute the foregoing charges. However, his
allegation that he applied for a leave during the dates
specified, when in truth and in fact he did not, does not
amount to serious dishonesty. He made the alterations to
reflect the number of absences he had actually incurred,
albeit without the approval of his immediate supervisor.
Nevertheless, such act constitutes misconduct.14
Public service requires integrity and discipline. For this
reason, public servants must exhibit at all times the highest
sense of honesty and dedication to duty. By the very nature
of their duties and responsibilities, they must faithfully
adhere to, hold sacred and render inviolate the constitutional
principle that a public office is a public trust; that all public
officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity,
loyalty and efficiency.15
Neither did respondent deny his brash behavior bordering on
discourtesy and disrespect for Atty. Moises. By banging doors
and windows, slamming office supplies, and staring at
everyone with belligerence, he displayed conduct
unbecoming a court employee; it degraded the dignity of the
judiciary and undermined the people's faith and confidence in
it. At all times, employees of the judiciary are expected to
accord respect to the person and the rights of another, even
a co-employee. Their every act and word should be
characterized by prudence, restraint, courtesy and dignity.
Government service is people-oriented; high-strung and
belligerent behavior has no place therein.16
Rude and hostile behavior often translates a personal conflict
into a potent pollutant of an otherwise peaceful work
environment; ultimately, it affects the quality of service that
the office renders to the public. Letting personal hatred affect
public performance is a violation of the principle enshrined in
the Code of Conduct and Ethical Standards for Public Officials
and Employees, a principle that demands that public interest
be upheld over personal ones.17
Improper behavior especially during office hours exhibits not
only a paucity of professionalism at the workplace, but also
great disrespect for the court itself. Such demeanor is a
failure of circumspection demanded of every public official
and employee.18 Thus, the Court looks "with great disfavor
upon any display of animosity by any court employee"19 and
exhorts every court personnel to act with strict propriety and
proper decorum to earn public trust for the judiciary.
Colleagues in the judiciary, including those occupying the
lowliest position, are entitled to basic courtesy and respect.20
In discharging its constitutional duty of supervising lower
courts and their personnel, this Court cannot ignore the fact
that the judiciary is composed essentially of human beings
who have differing personalities, outlooks and attitudes; and
who are naturally vulnerable to human
weaknesses.21 Nevertheless, the Code of Judicial Ethics
mandates that court personnel must not only be, but also be
perceived to be, free from any impropriety - - with respect
not only to their duties in the judicial branch, but also to
their behavior anywhere else.22
Sufficiently proven were the following charges: 1) frequent
unauthorized absences, loafing or frequent unauthorized
absences from duty during regular office hours and 2) gross
discourtesy in the course of official duties. Under Civil
Service Rules and Regulations, the first carries with it, upon
its first commission, the minimum penalty of suspension for
six months and one day; the second, the minimum penalty
of suspension for one month and one day.23
That respondent considers himself resigned from the service
is of no consequence to the charges against him. The
jurisdiction of the Court was acquired at the time of the filing
of the Complaint; it was not lost by the resignation of
respondent from his office during the pendency of the
case.24 In our Resolution dated July 14, 2003, we held thus:
"Considering the Court Administrator's Memorandum dated
June 18, 2003, on the letter of respondent stating that he
had already resigned as Cash Clerk II in the Office of the
Clerk of Court, Regional Trial Court, San Carlos City,
Pangasinan (detailed in Municipal Trial Court in Cities,
Dagupan City, Branch I) effective September 30, 2002 and
inquiring among others, whether the instant administrative
case should still be investigated, reporting as follows:
"Section 1, Rule XII of the Omnibus Rules on Appointments
and other Personnel Actions (CSC M.C. No. 40, s. 1998)
provides:
"An officer or employee under investigation may be allowed
to resign pending decision of his case without prejudice to
the continuation of the proceedings until finally terminated.
"Finally, while indeed respondent tendered his resignation on
September 30, 2002, verification from the Administrative
Service, Office of the Court Administrator, indicates that the
resignation of Mr. Llamas has not been accepted or acted
upon."
Since respondent has not been reporting for work and
considers himself resigned from the service, the penalty of
suspension is no longer viable. Thus, in lieu of suspension,
the penalty of fine equivalent to his salary for a period of six
months may be imposed.25 This ruling is in line with Section
19 of the Omnibus Rules Implementing Book V of Executive
Order No. 292, which provides:
"The penalty of transfer, or demotion, or fine may be
imposed instead of suspension from one month and one day
to one year except in case of fine which shall not exceed six
months."
WHEREFORE, Oscar T. Llamas is found GUILTY of frequent
unauthorized absences, loafing or frequent unauthorized
absences from duty during regular office hours, and gross
discourtesy in the performance of official duties, for which he
is hereby ORDERED to PAY a fine equivalent to his salary for
six (6) months. This sum may be taken from whatever sums
may be due him as retirement, leaves or other benefits.
3. Public Office, Not Property
SO ORDERED.
G.R. No. 152295 - July 9, 2002
ANTONIETTE V.C. MONTESCLAROS, MARICEL
CARANZO, JOSEPHINE ATANGAN, RONALD ATANGAN
and CLARIZA DECENA, and OTHER YOUTH OF THE
LAND SIMILARLY SITUATED, Petitioners,
vs. COMMISSION ON ELECTIONS, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT OF
BUDGET AND MANAGEMENT, EXECUTIVE SECRETARY of
the OFFICE OF THE PRESIDENT, SENATOR FRANKLIN
DRILON in his capacity as Senate President and
SENATOR AQUILINO PIMENTEL in his capacity as
Minority Leader of the Senate of the Philippines,
CONGRESSMAN JOSE DE VENECIA in his capacity as
Speaker, CONGRESSMAN AGUSTO L. SYJOCO in his
capacity as Chairman of the Committee on Suffrage
and Electoral Reforms, and CONGRESSMAN EMILIO C.
MACIAS II in his capacity as Chairman of the
Committee on Local Government of the House of
Representatives, THE PRESIDENT OF THE
PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG
KABATAAN, AND ALL THEIR AGENTS AND
REPRESENTATIVES, Respondents.
CARPIO, J.:
The Case
Before us is a petition for certiorari, prohibition and
mandamus with prayer for a temporary restraining order or
preliminary injunction. The petition seeks to prevent the
postponement of the Sangguniang Kabataan ("SK" for
brevity) elections originally scheduled last May 6, 2002. The
petition also seeks to prevent the reduction of the age
requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a
taxpayer's and class suit, on their own behalf and on behalf
of other youths similarly situated. Petitioners claim that they
are in danger of being disqualified to vote and be voted for in
the SK elections should the SK elections on May 6, 2002 be
postponed to a later date. Under the Local Government Code
of 1991 (R.A. No. 7160), membership in the SK is limited to
youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents "connived,
confederated and conspired" to postpone the May 6, 2002 SK
elections and to lower the membership age in the SK to at
least 15 but less than 18 years of age. Petitioners assail the
alleged conspiracy because youths at least 18 but not more
than 21 years old will be "summarily and unduly
dismembered, unfairly discriminated, unnecessarily
disenfranchised, unjustly disassociated and obnoxiously
disqualified from the SK organization."1
Thus, petitioners pray for the issuance of a temporary
restraining order or preliminary injunction -
"a) To prevent, annul or declare unconstitutional any law,
decree, Comelec resolution/directive and other respondents'
issuances, orders and actions and the like in postponing the
May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002
SK elections set by the present law and in accordance with
Comelec Resolutions No. 4713 and 4714 and to expedite the
funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for
whatever reason, there must be a definite date for said
elections, for example, July 15, 2002, and the present SK
membership, except those incumbent SK officers who were
elected on May 6, 1996, shall be allowed to run for any SK
elective position even if they are more than 21 years old.
d) To direct the incumbent SK officers who are presently
representing the SK in every sanggunian and the NYC to
vacate their post after the barangay elections."2
The Facts
The SK is a youth organization originally established by
Presidential Decree No. 684 as the Kabataang
Barangay ("KB" for brevity). The KB was composed of all
barangay residents who were less than 18 years old, without
specifying the minimum age. The KB was organized to
provide its members with the opportunity to express their
views and opinions on issues of transcendental importance.3
The Local Government Code of 1991 renamed the KB to SK
and limited SK membership to those youths "at least 15 but
not more than 21 years of age."4 The SK remains as a youth
organization in every barangay tasked to initiate programs
"to enhance the social, political, economic, cultural,
intellectual, moral, spiritual, and physical development of the
youth."5 The SK in every barangay is composed of a
chairperson and seven members, all elected by
the Katipunan ng Kabataan. The Katipunan ng Kabataan in
every barangay is composed of all citizens actually residing
in the barangay for at least six months and who meet the
membership age requirement.
The first SK elections took place on December 4, 1992. RA
No. 7808 reset the SK elections to the first Monday of May of
1996 and every three years thereafter. RA No. 7808
mandated the Comelec to supervise the conduct of the SK
elections under rules the Comelec shall promulgate.
Accordingly, the Comelec on December 4, 2001 issued
Resolution Nos. 47136 and 47147 to govern the SK elections
on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C.
Montesclaros ("Montesclaros" for brevity) sent a letter8 to the
Comelec, demanding that the SK elections be held as
scheduled on May 6, 2002. Montesclaros also urged the
Comelec to respond to her letter within 10 days upon receipt
of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo ("Chairman
Benipayo" for brevity), then Comelec Chairman, wrote
identical letters to the Speaker of the House 9 and the Senate
President10 about the status of pending bills on the SK and
Barangay elections. In his letters, the Comelec Chairman
intimated that it was "operationally very difficult" to hold
both elections simultaneously in May 2002. Instead, the
Comelec Chairman expressed support for the bill of Senator
Franklin Drilon that proposed to hold the Barangay elections
in May 2002 and postpone the SK elections to November
2002.
Ten days lapsed without the Comelec responding to the letter
of Montesclaros. Subsequently, petitioners received a copy of
Comelec En Banc Resolution No. 476311 dated February 5,
2002 recommending to Congress the postponement of the
SK elections to November 2002 but holding the Barangay
elections in May 2002 as scheduled.12
On March 6, 2002, the Senate and the House of
Representatives passed their respective bills postponing the
SK elections. On March 11, 2002, the Bicameral Conference
Committee ("Bicameral Committee" for brevity) of the
Senate and the House came out with a
13
Report  recommending approval of the reconciled bill
consolidating Senate Bill No. 205014 and House Bill No.
4456.15 The Bicameral Committee's consolidated bill reset the
SK and Barangay elections to July 15, 2002 and lowered the
membership age in the SK to at least 15 but not more than
18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral
Committee's consolidated bill and on March 13, 2002, the
House of Representatives approved the same. The President
signed the approved bill into law on March 19, 2002.
The Issues
Petitioners16 raise the following grounds in support of their
petition:
"I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN THEY INTENDED TO
POSTPONE THE SK ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN THEY INTENDED TO
DISCRIMINATE, DISENFRANCHISE, SINGLE OUT AND
DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT
LESS17 (SIC) THAN 21 YEARS OLD COMPOSED OF ABOUT 7
MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN THEY WILLFULLY FAILED
TO FUND THE SK ELECTION PURPORTEDLY TO POSTPONE
THE SAME IN ORDER TO IMPLEMENT THEIR ILLEGAL
SCHEME AND MACHINATION IN SPITE OF THE FACT THAT
THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY
SIT ON THEIR RESPECTIVE OFFICES CONTRARY TO THE
ENVISION (SIC) OF THE CREATION OF THE SK
ORGANIZATION, HENCE, IN VIOLATION OF LAW AND
CONSTITUTION."18
ISSUE
WHETHER OR NOT public office is a property right. NO
The Court's Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following
events that have transpired since petitioners filed this
petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay
elections were not held as scheduled.
2. Congress enacted RA No. 916419 which provides that
voters and candidates for the SK elections must be "at least
15 but less than 18 years of age on the day of the
election."20 RA No. 9164 also provides that there shall be a
synchronized SK and Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules
and regulations for the conduct of the July 15, 2002
synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the
postponement of the May 6, 2002 SK elections
disenfranchises them, preventing them from voting and
being voted for in the SK elections. Petitioners' theory is that
if the SK elections were postponed to a date later than May
6, 2002, the postponement would disqualify from SK
membership youths who will turn 21 years old between May
6, 2002 and the date of the new SK elections. Petitioners
claim that a reduction in the SK membership age to 15 but
less than 18 years of age from the then membership age of
15 but not more than 21 years of age would disqualify about
seven million youths. The public respondents' failure to hold
the elections on May 6, 2002 would prejudice petitioners and
other youths similarly situated.
Thus, petitioners instituted this petition to: (1) compel public
respondents to hold the SK elections on May 6, 2002 and
should it be postponed, the SK elections should be held not
later than July 15, 2002; (2) prevent public respondents
from passing laws and issuing resolutions and orders that
would lower the membership age in the SK; and (3) compel
public respondents to allow petitioners and those who have
turned more than 21 years old on May 6, 2002 to participate
in any re-scheduled SK elections.
The Court's power of judicial review may be exercised in
constitutional cases only if all the following requisites are
complied with, namely: (1) the existence of an actual and
appropriate case or controversy; (2) a personal and
substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is
the lis mota of the case.21
In the instant case, there is no actual controversy requiring
the exercise of the power of judicial review. While seeking to
prevent a postponement of the May 6, 2002 SK elections,
petitioners are nevertheless amenable to a resetting of the
SK elections to any date not later than July 15, 2002. RA No.
9164 has reset the SK elections to July 15, 2002, a date
acceptable to petitioners. With respect to the date of the SK
elections, there is therefore no actual controversy requiring
judicial intervention.
Petitioners' prayer to prevent Congress from enacting into
law a proposed bill lowering the membership age in the SK
does not present an actual justiciable controversy. A
proposed bill is not subject to judicial review because it is not
a law. A proposed bill creates no right and imposes no duty
legally enforceable by the Court. A proposed bill, having no
legal effect, violates no constitutional right or duty. The
Court has no power to declare a proposed bill constitutional
or unconstitutional because that would be in the nature of
rendering an advisory opinion on a proposed act of Congress.
The power of judicial review cannot be
exercised in vacuo.22 The second paragraph of Section 1,
Article VIII of the Constitution states -
"Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." (Emphasis
supplied)
Thus, there can be no justiciable controversy involving the
constitutionality of a proposed bill. The Court can exercise its
power of judicial review only after a law is enacted, not
before.
Under the separation of powers, the Court cannot restrain
Congress from passing any law, or from setting into motion
the legislative mill according to its internal rules. Thus, the
following acts of Congress in the exercise of its legislative
powers are not subject to judicial restraint: the filing of bills
by members of Congress, the approval of bills by each
chamber of Congress, the reconciliation by the Bicameral
Committee of approved bills, and the eventual approval into
law of the reconciled bills by each chamber of Congress.
Absent a clear violation of specific constitutional limitations
or of constitutional rights of private parties, the Court cannot
exercise its power of judicial review over the internal
processes or procedures of Congress.23
The Court has also no power to dictate to Congress the
object or subject of bills that Congress should enact into law.
The judicial power to review the constitutionality of laws does
not include the power to prescribe to Congress what laws to
enact. The Court has no power to compel Congress by
mandamus to enact a law allowing petitioners, regardless of
their age, to vote and be voted for in the July 15, 2002 SK
elections. To do so would destroy the delicate system of
checks and balances finely crafted by the Constitution for the
three co-equal, coordinate and independent branches of
government.
Under RA No. 9164, Congress merely restored the age
requirement in PD No. 684, the original charter of the SK,
which fixed the maximum age for membership in the SK to
youths less than 18 years old. Petitioners do not have a
vested right to the permanence of the age requirement
under Section 424 of the Local Government Code of 1991.
Every law passed by Congress is always subject to
amendment or repeal by Congress. The Court cannot restrain
Congress from amending or repealing laws, for the power to
make laws includes the power to change the laws.24
The Court cannot also direct the Comelec to allow over-aged
voters to vote or be voted for in an election that is limited
under RA No. 9164 to youths at least 15 but less than 18
years old. A law is needed to allow all those who have turned
more than 21 years old on or after May 6, 2002 to
participate in the July 15, 2002 SK elections. Youths from 18
to 21 years old as of May 6, 2002 are also no longer SK
members, and cannot participate in the July 15, 2002 SK
elections. Congress will have to decide whether to enact an
amendatory law. Petitioners' remedy is legislation, not
judicial intervention.
Petitioners have no personal and substantial interest in
maintaining this suit. A party must show that he has been, or
is about to be denied some personal right or privilege to
which he is lawfully entitled.25 A party must also show that
he has a real interest in the suit. By "real interest" is meant a
present substantial interest, as distinguished from a mere
expectancy or future, contingent, subordinate, or
26
inconsequential interest.
In the instant case, petitioners seek to enforce a right
originally conferred by law on those who were at least 15 but
not more than 21 years old. Now, with the passage of RA No.
9164, this right is limited to those who on the date of the SK
elections are at least 15 but less than 18 years old. The new
law restricts membership in the SK to this specific age group.
Not falling within this classification, petitioners have ceased
to be members of the SK and are no longer qualified to
participate in the July 15, 2002 SK elections. Plainly,
petitioners no longer have a personal and substantial interest
in the SK elections.
This petition does not raise any constitutional issue. At the
time petitioners filed this petition, RA No. 9164, which reset
the SK elections and reduced the age requirement for SK
membership, was not yet enacted into law. After the passage
of RA No. 9164, petitioners failed to assail any provision in
RA No. 9164 that could be unconstitutional. To grant
petitioners' prayer to be allowed to vote and be voted for in
the July 15, 2002 SK elections necessitates assailing the
constitutionality of RA No. 9164. This, petitioners have not
done. The Court will not strike down a law unless its
constitutionality is properly raised in an appropriate action
and adequately argued.27
The only semblance of a constitutional issue, albeit
erroneous, that petitioners raise is their claim that SK
membership is a "property right within the meaning of the
Constitution."28 Since certain public offices are "reserved" for
SK officers, petitioners also claim a constitutionally protected
"opportunity" to occupy these public offices. In petitioners'
own words, they and others similarly situated stand to "lose
their opportunity to work in the government positions
reserved for SK members or officers."29 Under the Local
Government Code of 1991, the president of the federation of
SK organizations in a municipality, city or province is an ex-
officio member of the municipal council, city council or
provincial board, respectively.30 The chairperson of the SK in
the barangay is an ex-officio member of the Sangguniang
Barangay.31 The president of the national federation of SK
organizations is an ex-officio member of the National Youth
Commission, with rank of a Department Assistant
Secretary.32
Congress exercises the power to prescribe the qualifications
for SK membership. One who is no longer qualified because
of an amendment in the law cannot complain of being
deprived of a proprietary right to SK membership. Only those
who qualify as SK members can contest, based on a
statutory right, any act disqualifying them from SK
membership or from voting in the SK elections. SK
membership is not a property right protected by the
Constitution because it is a mere statutory right conferred by
law. Congress may amend at any time the law to change or
even withdraw the statutory right.
A public office is not a property right. As the Constitution
expressly states, a "[P]ublic office is a public trust."33 No one
has a vested right to any public office, much less a vested
right to an expectancy of holding a public office. In Cornejo
v. Gabriel,34 decided in 1920, the Court already ruled:
"Again, for this petition to come under the due process of law
prohibition, it would be necessary to consider an office a
"property." It is, however, well settled x x x that a
public office is not property within the sense of the
constitutional guaranties of due process of law, but is a
public trust or agency. x x x The basic idea of the
government x x x is that of a popular representative
government, the officers being mere agents and not rulers of
the people, one where no one man or set of men has a
proprietary or contractual right to an office, but where every
officer accepts office pursuant to the provisions of the law
and holds the office as a trust for the people he represents."
(Emphasis supplied)
Petitioners, who apparently desire to hold public office,
should realize from the very start that no one has a
proprietary right to public office. While the law makes an SK
officer an ex-officio member of a local government legislative
council, the law does not confer on petitioners a proprietary
right or even a proprietary expectancy to sit in local
legislative councils. The constitutional principle of a public
office as a public trust precludes any proprietary claim to
public office. Even the State policy directing "equal access to
opportunities for public service"35 cannot bestow on
petitioners a proprietary right to SK membership or a
proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youth's
involvement in public affairs,36 this policy refers to those who
belong to the class of people defined as the youth. Congress
has the power to define who are the youth qualified to join
the SK, which itself is a creation of Congress. Those who do
not qualify because they are past the age group defined as
the youth cannot insist on being part of the youth. In
government service, once an employee reaches mandatory
retirement age, he cannot invoke any property right to cling
to his office. In the same manner, since petitioners are now
past the maximum age for membership in the SK, they
cannot invoke any property right to cling to their SK
membership.
The petition must also fail because no grave abuse of
discretion attended the postponement of the SK elections. RA
No. 9164 is now the law that prescribes the qualifications of
candidates and voters for the SK elections. This law also
fixes the date of the SK elections. Petitioners are not even
assailing the constitutionality of RA No. 9164. RA No. 9164
enjoys the presumption of constitutionality and will apply to
the July 15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally
or with grave abuse of discretion in recommending to
Congress the postponement of the SK elections. The very
evidence relied upon by petitioners contradict their allegation
of illegality. The evidence consist of the following: (1)
Comelec en banc Resolution No. 4763 dated February 5,
2002 that recommended the postponement of the SK
elections to 2003; (2) the letter of then Comelec Chairman
Benipayo addressed to the Speaker of the House of
Representatives and the President of the Senate; and (3) the
Conference Committee Report consolidating Senate Bill No.
2050 and House Bill No. 4456.
The Comelec exercised its power and duty to "enforce and
administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum and
recall"37 and to "recommend to Congress effective measures
to minimize election spending."38 The Comelec's acts enjoy
the presumption of regularity in the performance of official
duties.39 These acts cannot constitute proof, as claimed by
petitioners, that there "exists a connivance and conspiracy
(among) respondents in contravention of the present law."
As the Court held in Pangkat Laguna v. Comelec,40 the
"Comelec, as the government agency tasked with the
enforcement and administration of elections laws, is entitled
to the presumption of regularity of official acts with respect
to the elections."
The 1987 Constitution imposes upon the Comelec the duty of
enforcing and administering all laws and regulations relative
to the conduct of elections. Petitioners failed to prove that
the Comelec committed grave abuse of discretion in
recommending to Congress the postponement of the May 6,
2002 SK elections. The evidence cited by petitioners even
establish that the Comelec has demonstrated an earnest
effort to address the practical problems in holding the SK
elections on May 6, 2002. The presumption remains that the
decision of the Comelec to recommend to Congress the
postponement of the elections was made in good faith in the
regular course of its official duties.
Grave abuse of discretion is such capricious and whimsical
exercise of judgment that is patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law.41 Public respondents having
acted strictly pursuant to their constitutional powers and
duties, we find no grave abuse of discretion in their assailed
acts.
Petitioners contend that the postponement of the SK
elections would allow the incumbent SK officers to
perpetuate themselves in power, depriving other youths of
the opportunity to serve in elective SK positions. This
argument deserves scant consideration. While RA No. 9164
contains a hold-over provision, incumbent SK officials can
remain in office only until their successors have been elected
or qualified. On July 15, 2002, when the SK elections are
held, the hold-over period expires and all incumbent SK
officials automatically cease to hold their SK offices and their
ex-officio public offices.
In sum, petitioners have no personal and substantial interest
in maintaining this suit. This petition presents no actual
justiciable controversy. Petitioners do not cite any provision
of law that is alleged to be unconstitutional. Lastly, we find
no grave abuse of discretion on the part of public
respondents.
WHEREFORE, the petition is DISMISSED for utter lack of
merit.
SO ORDERED.
4. Public Office, Not Contract
[G.R. NO. 142347 : August 25, 2005]
DULCE M. ABANILLA, in her capacity as General
Manager of the Metropolitan Cebu Water District, Cebu
City, Petitioners, v. COMMISSION ON AUDIT, its
CHAIRMAN CELSO D. GANGAN, COMMISSIONERS RAUL
C. FLORES and EMMANUEL M.
DALMAN, Respondents and REGIONAL DIRECTOR OF
COA REGION VII, METROPOLITAN CEBU WATER
DISTRICT EMPLOYEES UNION, Petitioner-in-Intervention.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a Petition for Certiorari under Rule 64 in relation
to Rule 65 of the 1997 Rules of Civil Procedure, as amended,
assailing the Decision No. 98-4651 dated December 3, 1998
and Resolution No. 2000-0622 dated February 15, 2000
rendered by the Commission on Audit (COA).
The antecedents are:
Pursuant to Presidential Decree 198 or the Provincial Water
Utilities Act of 1973, Metropolitan Cebu Water District
(MCWD), a local water district was organized as a
government-owned corporation with original charter.
Subsequently, MCWD, through its Board of Directors, issued
the following Resolutions giving benefits and privileges to its
personnel, one of whom is Dulce M. Abanilla, MCWD's
General Manager, Petitionerherein: (1) Board Resolution No.
054-83 dated May 23, 1983 granting hospitalization
privileges; (2) Board Resolution Nos. 091-83 and 0203-85
dated October 21, 1983 and November 20, 1985,
respectively, allowing the monetization of leave credits; (3)
Board Resolution No. 0161-86 dated November 29, 1986
granting Christmas bonus; and (4) Board Resolution No.
083-88 granting longevity allowance.
On January 1, 1989, MCWD and Metropolitan Cebu Water
District Employees Union, petitioner-in-intervention,
executed a collective bargaining agreement (CBA) providing
for the continuous grant to all its regular rank and file
employees of existing benefits, such as cash advances,
thirteenth month pay, mid-year bonus, Christmas bonus,
vacation and sick leave credits, hospitalization, medicare,
uniform privileges, and water allowance.
On January 1, 1992, the parties renewed their CBA.
On November 13, 1995, an audit team headed by Bernardita
T. Jabines of the COA Regional Office No. VII at Cebu City,
one of the herein Respondents, conducted an audit of the
accounts and transactions of MCWD.
Thereafter, the Regional Director of COA Regional Office No.
VII, also a Respondent, sent MCWD several notices
disallowing the amount of P12,221,120.86 representing
hospitalization benefits, mid-year bonus, 13th month pay,
Christmas bonus and longevity pay.3
Aggrieved, petitioner interposed an appeal to respondent
COA at Quezon City. She cited COA Memorandum Circular
No. 002-94 providing that "all benefits provided under the
duly existing CBAs entered into prior to March 12, 1992, the
date of official entry of judgment of the Supreme Court ruling
in Davao City Water District, et al. v. CSC and COA, shall
continue up to the respective expiry dates of the benefits or
CBA whichever comes earlier."
On December 3, 1998, respondent COA rendered its Decision
No. 98-4654 denying petitioner's appeal. In sustaining the
disallowance in the amount of P12,221,120.86, respondent
COA cited this Court's ruling in Davao City Water District v.
Civil Service Commission5 that "a water district is a
corporation created pursuant to a special law - P.D. No. 198,
as amended, and as such, its officers and employees are
covered by the Civil Service Law."
Respondent COA then held that:
"There is no question that the CBA was concluded after the
decision in the Davao case was promulgated. As far as the
CBA is concerned the critical moment is the date of the
promulgation itself. Any transaction (CBA) concluded after
this date in violation of existing laws and regulations
applicable to government entities is void and of no effect. It
conferred no demandable right, it created no enforceable
obligation.
xxx
PREMISES CONSIDERED, the instant appeal has to be, as it
is hereby, denied. The disallowance in the total amount
of P12,221,120.86 is hereby AFFIRMED.
SO ORDERED."
Petitioner filed a motion for reconsideration but it was denied
by respondent COA in a Resolution No. 2000-0626 dated
February 15, 2000. In denying petitioner's motion,
respondent COA ruled that the compensation package of
MCWD personnel may no longer be the subject of a CBA. For
the terms of employment of those personnel are covered, not
by the Labor Code, but by the Civil Service Law.
Hence, this Petition for Certiorari.
Petitioner contends that respondent COA acted with grave
abuse of discretion in disallowing the above benefits and
privileges and contravened the Labor Code provision on non-
diminution of benefits.
The Solicitor General, in his comment, maintains that the
COA did not gravely abuse its discretion in denying
petitioner's appeal considering that the terms and conditions
of employment, such as the entitlement of government
personnel, like the affected MCWD employees, to privileges
and benefits are governed by the Civil Service Law, the
General Appropriations Act and applicable issuances of the
Department of Budget and Management, not by the Labor
Code.
The petition is bereft of merit.
In light of this Court's ruling in Davao City Water
District7 that the officers and employees of a water district
are covered by the Civil Service Law,8 petitioner's invocation
of the CBA, in justifying the receipt by the MCWD personnel
of benefits and privileges, is utterly misplaced. Thus, we
sustain the disallowance by respondent COA.
In Alliance of Government Workers v. Minister of Labor and
Employment,9 this Court held:
"Subject to the minimum requirements of wage laws and
other labor and welfare legislation, the terms and conditions
of employment in the unionized private sector are settled
through the process of collective bargaining. In government
employment, however, it is the legislature and, where
properly given delegated power, the administrative heads of
government which fix the terms and conditions of
employment. And this is effected through statutes or
administrative circulars, rules, and regulations, not through
collective bargaining agreements."
While we sustain the disallowance of the above benefits by
respondent COA, however, we find that the MCWD affected
personnel who received the above mentioned benefits
and privileges acted in good faith under the honest
belief that the CBA authorized such
payment. Consequently, they need not refund them.
In Querubin v. Regional Cluster Director, Legal and
Adjudication Office, COA Regional Office VI, Pavia, Iloilo
City,10 citing De Jesus v. Commission on Audit,11 this Court
held:
"Considering, however, that all the parties here acted in good
faith, we cannot countenance the refund of subject incentive
benefits for the year 1992, which amounts the petitioners
have already received. Indeed, no indicia  of bad faith can be
detected under the attendant facts and circumstances. The
officials and chiefs of offices concerned disbursed such
incentive benefits in the honest belief that the amounts given
were due to the recipients and the latter accept the same
with gratitude, confident that they richly deserve such
benefits.
x x x. Petitioners here received the additional allowances and
bonuses in good faith under the honest belief that LWUA
Board Resolution No. 313 authorized such payment. At the
time petitioners received the additional allowances and
bonuses, the Court had not yet decided Baybay Water
District. Petitioners had no knowledge that such payment
was without legal basis. Thus, being in good faith,
petitioners need not refund the allowances and
bonuses they received but disallowed by the COA."
WHEREFORE, the petition is DENIED. The assailed Decision
No. 98-465 dated December 3, 1998 and Resolution No.
2000-062 dated February 15, 2000 of respondent COA
are AFFIRMED with MODIFICATION in the sense that the
amount of P12,221,120.86 representing disallowed benefits
and privileges should not be refunded by the MCWD
personnel.
SO ORDERED.
5. Eligibility
G.R. No. L-55151 March 17, 1981
DAVID AGUILA, EDITA BUENO, EVELITO ELENTO,
RESURRECTION INTING, ANTONIO LIM and WILFREDO
CABARDO, petitioners,
vs.
HON. MELECIO A. GENATO and DOMINADOR B. BORJE,
respondents.
MELENCIO-HERRERA, J.:
The principal issue raised in this certiorari petition with a prayer for a
Writ of Preliminary Injunction is whether or not respondent Judge
committed grave abuse of discretion in issuing a Restraining Order,
which had the effect of allowing private respondent, Dominador B.
Borje, to retain his position as member of the Board of Directors of the
Misamis Occidental Electric Cooperative, Inc ., (MOELCI II)
Succintly stated, the pertinent facts follow:
Petitioners David Aguila and Edita Bueno are the Deputy
Administrator and Director for Cooperative Development, respectively,
of the National Electrification Administration (NEA).
Petitioner Evelito Elento is the Acting General Manager of MOELCI II,
while petitioners Ressurrection Inting, Antonio Lim and Wilfredo
Cabardo, are members of its Board of Directors.
Private respondent Dominador B. Borje, representing the North
District of Ozamiz City, was elected Director of MOELCI II, to hold
office as such for three years starting March 25, 1979.
Section 21 of Presidential Decree No. 269 (second paragraph)
provides:
The provision of any law or regulation to the contrary
notwithstanding, an officer or employee of the
government shag be eligible for membership in any
cooperative if he meets the qualifications therefor and
he shall not be precluded from being elected to or
holding any Position therein, or from receiving such
compensation or fee in relation thereto as may be
authorized by the by-laws; Provided That elective
officers of the government, except barrio captains and
councilors, shall be ineligible to become officers and/or
directors of any cooperative, ... (emphasis supplied)
Section 3, Article IV of the By-laws of MOELCI II also explicitly states:
Section 3. Qualifications. ... No person shall be eligible
to become or to remain a Board member of the
Cooperative who
xxx xxx xxx
(c) holds an elective office in the government above the
level of a Barangay Captain
xxx xxx xxx
(emphasis supplied)
On 4 January 1980, private respondent filed his certificate of
candidacy for the position of member of the Sangguniang Panglunsod
of Ozamiz City in the 30 January 1980 local elections.
On 7 January 1980, the NEA, through Administrator Pedro G. Dumol,
issued Memorandum No. 18 to the effect that all officials and
employees of electric cooperatives who run for public office, win and
assume office, shall be considered The Memorandum was issued
pursuant to the authority granted under PD No. 1645, amending PD
No. 269, reading.
10. ... the NEA is empowered to issue orders, rules and
regulations ... in the exercise of its power of supervision
and control over electric cooperatives and other
borrower, supervised or control entities (Sec. 5,
amending Sec. 10 of P.D. No. 269). 1
On January 1980, the NEA Deputy Administrator sent a telegram to
the Acting General Manager of MOELCI II stating that should private
respondent Borje be elected to the Sangguniang Bayan, he shall be
considered resigned from his position as Director for the North District
of Ozamiz City, Private respondent moved reconsideration and
requested that he be allowed to serve the unexpired term of his office
in accordance with PD No. 269. Reconsideration was denied by NEA
on 7 February 1980.
On 3 March 1980, private respondent filed a Petition for "Prohibition,
mandamus & Construction of Legal Provisions with Preliminary
Injunction and Damages" against petitioners before the Court of First
Instance of Misamis Occidental, Branch II (Spec. Case No. 0511),
seeking a declaration of entitlement to remain and to serve his
unexpired term as Director of MOELCI II until March, 1982.
On 3 March 1980, having won the election, private respondent
assumed office and began discharging his functions.
On the same date, 3 March 1980, respondent Judge issued, ex-
parte, a temporary restraining Order commanding petitioners
considering private respondent as resigned, and, instead, to snow him
to retain his position as member of the Board of Directors of MOELCI
IIpending hearing. 2
Petitioners moved to dismiss and to dissolve the Restraining Order
alleging lack of cause of action and invoking section 21 of PD No. 269
(supra), section 3, Article IV of the by laws OF MOELCI II(supra), as
well as section 24 of PD No. 269 providing that:
 ... The by-laws shall prescribe the number of directors
their qualifications other than those prescribed in this
Decree, the manner of holding meetings of the board
and of electing successors to directors who shall
resign, die or otherwise be incapable of acting. The
bylaws may also provide for the removal of directors
from office and for the election of their successors ...
On 24 March 1980, respondent Judge lifted and dissolved the
Restraining Order, 3 only to restore it the next day, 25 March 1980. 4
In their Motion seeking reconsideration of the Order of 25 March
1980, petitioners stressed that NEA possessed the power and
authority to promulgate Memorandum No 18, and that, similarly, the
Board of Directors of MOELCI IIhad the power to implement the same
under PD No. 269, as amended by PD 1645.
Petitioners filed their Answer on 6 April 1980 reiterating the grounds in
their Motion to Dismiss.
On 8 May 1980, vacation Judge Celso Largo reconsidered the Order
of respondent Judge, dated 25 March 1980, and dissolved the
Restraining Order. 5
On 10 May 1980, the Board of Directors of MOELCI II held a special
meeting and passed Resolution No. 121, S-80, implementing NEA
Circular No. 18 and declaring private respondent's position as
member of the Board of Directors of MOELCI II vacant.
On 6 June 1980, upon a Motion for Reconsideration, respondent
Judge set aside the Order of the vacation Judge, dated 8 May 1980,
in effect reviving the Restraining Order, on the ground that, as
"councilor" of Ozamiz City, section 21 of PD No. 269 itself exempts
private respondent from the prohibition imposed on elective officials to
become Directors of electric cooperatives. 6
Hence, this Petition filed on 29 September 1980 by petitioners,
through the Solicitor General, advancing the view that Courts of First
Instance have no jurisdiction to issue a Restraining Order and that
respondent Judge had committed grave abuse of discretion in issuing
the same.
On 10 October 1980 we required respondents to submit an Answer
and issued a Restraining Order enjoining respondents from enforcing
the Order of the Court a quo dated 6 June 1980 and from conducting
further proceedings in the case below. Private respondent Borje has
filed his Answer, petitioners have submitted their Reply, and on 2
February 1981, we resolved to give due course to the Petition and to
consider the case submitted for decision.
We find that respondent Judge gravely abused his discretion,
amounting to lack of jurisdiction, in issuing the various Restraining
Orders, the last of which was dated 6 June 1980. Private respondent
has shown no clear and explicit right to the position of Director of
MOELCI IIand is, therefore, not entitled to a Restraining Order, which
partook of the nature of a mandatory Injunction, commanding as it did
that private respondent be retained in his position as such Director. By
having been elected member of the Sangguniang Panglunsod of
Ozamiz City, private respondent rendered himself ineligible to
continue serving as a Director of MOELCI IIby virtue of the clear
mandate of PD No. 269 providing that except for "barrio captains and
councilors", elective officials are ineligible to become officers and/or
directors of any cooperative. It is clear to us that the term barrio
modifies both captains and councilors. Further, the MOELCI II, by-
laws explicitly state that no person can remain a member of the Board
if he "holds an elective office above the level of barrio captain.
Private respondent's argument that PD 269 (sec. 21) does not prohibit
Board members of a cooperatives from continuing in their position
prior to their election, and that pursuant to section 24 of PD No. 269
he is entitled, as Director, to hold office for the term for which he is
erected and until his successor is elected and qualified," is untenable.
Eligibility to an office should be construed as of a continuing nature
and must exist at the commencement of the term and during
occupancy of the office. The fact that private respondent may have
been qualified at the time he assumed the Directorship is not sufficient
to entitle him to continue holding office, if during the continuance of
his incumbency he ceases to be qualified. Private respondent was
qualified to become a director of MOELCI II at the time of the
commencement of his term, but his election as member of the
Sangguniang Panglunsod of Ozamiz City, and his subsequent
assumption of office, disqualified him to continue as such.
Moreover, it should be recalled that when respondent Judge issued
the Restraining Order of 6 June 1980. NEA Memorandum Circular No.
18 had already been implemented by the MOELCI Board in the latter's
Resolution No. 121, passed on 10 May 1980, declaring the position of
private respondent, as Director, vacant. Strictly speaking, therefore,
there was no longer any position which private respondent could
retain.
WHEREFORE, finding that respondent Judge acted with grave abuse
of discretion tantamount to lack of jurisdiction in issuing the
Restraining Order, dated 6 June 1980, the said Order is hereby
annulled and set aside, and the Petition in Special Civil Case No.
05IIof the Court below hereby ordered dismissed. The temporary
Restraining Order heretofore issued by this Court is hereby made
permanent. No pronouncement as to costs.
SO ORDERED.
(i) Juan G. Frivaldo, who unquestionably obtained the highest number
of votes in three successive elections but who was twice declared by
this Court to be disqualified to hold such office due to his alien
citizenship, and who now claims to have re-assumed his lost
Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who
claims that the votes cast in favor of Frivaldo should be considered
void; that the electorate should be deemed to have intentionally
thrown away their ballots; and that legally, he secured the most
number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was
not voted directly to the position of governor, but who according to
prevailing jurisprudence should take over the said post inasmuch as,
by the ineligibility of Frivaldo, a "permanent vacancy in the contested
office has occurred"?

6. Time of Possession and Qualifications In ruling for Frivaldo, the Court lays down new doctrines on
repatriation, clarifies/reiterates/amplifies existing jurisprudence on
G.R. No. 120295 June 28, 1996 citizenship and elections, and upholds the superiority of substantial
justice over pure legalisms.
JUAN G. FRIVALDO, petitioner,
vs. G.R. No. 123755
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
This is a special civil action under Rules 65 and 58 of the Rules of
G.R. No. 123755 June 28, 1996 Court for certiorari and preliminary injunction to review and annul a
Resolution of the respondent Commission on Elections (Comelec),
RAUL R. LEE, petitioner, First Division,1 promulgated on December 19, 19952 and another
vs. Resolution of the Comelec en banc promulgated February 23,
COMMISSION ON ELECTIONS and JUAN G. 19963 denying petitioner's motion for reconsideration.
FRIVALDO, respondents.
The Facts
 
On March 20, 1995, private respondent Juan G. Frivaldo filed his
PANGANIBAN, J.:p Certificate of Candidacy for the office of Governor of Sorsogon in the
May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee,
The ultimate question posed before this Court in these twin cases is: another candidate, filed a petition4 with the Comelec docketed as SPA
Who should be declared the rightful governor of Sorsogon - No. 95-028 praying that Frivaldo "be disqualified from seeking or
holding any public office or position by reason of not yet being a
citizen of the Philippines", and that his Certificate of Candidacy be
canceled. On May 1, 1995, the Second Division of the Comelec
promulgated a Resolution5 granting the petition with the following
disposition6:
WHEREFORE, this Division resolves to GRANT the
petition and declares that respondent is
DISQUALIFIED to run for the Office of Governor of
Sorsogon on the ground that he is NOT a citizen of the
Philippines. Accordingly, respondent's certificate of
candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted
upon until after the May 8, 1995 elections. So, his candidacy
continued and he was voted for during the elections held on said date.
On May 11, 1995, the Comelec en banc7 affirmed the aforementioned
Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the
election returns and a Certificate of Votes 8 dated May 27, 1995 was
issued showing the following votes obtained by the candidates for the
position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition9 praying for his proclamation as the duly-elected Governor of
Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the
petition "only on June 29, 1995," the Comelec en banc directed "the
Provincial Board of Canvassers of Sorsogon to reconvene for the
purpose of proclaiming candidate Raul Lee as the winning
gubernatorial candidate in the province of Sorsogon on June 29, 1995
. . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was
proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new
petition,11 docketed as SPC No. 95-317, praying for the annulment of
the June 30, 1995 proclamation of Lee and for his own proclamation.
He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his
oath of allegiance as a citizen of the Philippines after "his petition for
repatriation under P.D. 725 which he filed with the Special Committee
on Naturalization in September 1994 had been granted". As such,
when "the said order (dated June 21, 1995) (of the Comelec) . . . was
released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in
the evening, there was no more legal impediment to the proclamation
(of Frivaldo) as governor . . ." In the alternative, he averred that
pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor -
not Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the
herein assailed Resolution13 holding that Lee, "not having garnered
the highest number of votes," was not legally entitled to be proclaimed
as duly-elected governor; and that Frivaldo, "having garnered the
highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on
June 30, 1995 under the provisions of Presidential Decree No.
725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First
Division), therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court,
the proclamation of Raul R. Lee as Governor of
Sorsogon is hereby ordered annulled, being contrary to
law, he not having garnered the highest number of
votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation
of Raul R. Lee, the Provincial Board of Canvassers is
directed to immediately reconvene and, on the basis of
the completed canvass, proclaim petitioner Juan G.
Frivaldo as the duly elected Governor of Sorsogon
having garnered the highest number of votes, and he
having reacquired his Filipino citizenship by repatriation
on June 30, 1995 under the provisions of Presidential
Decree No. 725 and, thus, qualified to hold the office of
Governor of Sorsogon.
 Conformably with Section 260 of the Omnibus Election
Code (B.P. Blg. 881), the Clerk of the Commission is
directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang
Panlalawigan of the Province of Sorsogon of this
resolution immediately upon the due implementation
thereof.
On December 26, 1995, Lee filed a motion for reconsideration which
was denied by the Comelec en banc in its Resolution 14 promulgated
on February 23, 1996. On February 26, 1996, the present petition was
filed. Acting on the prayer for a temporary restraining order, this Court
issued on February 27, 1996 a Resolution which inter alia directed the
parties "to maintain the status quo prevailing prior to the filing of this
petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be
capsulized in the following propositions"15:
First -- The initiatory petition below was so far
insufficient in form and substance to warrant the
exercise by the COMELEC of its jurisdiction with the
result that, in effect, the COMELEC acted without
jurisdiction in taking cognizance of and deciding said
petition;
Second -- The judicially declared disqualification of
respondent was a continuing condition and rendered
him ineligible to run for, to be elected to and to hold the
Office of Governor;
Third -- The alleged repatriation of respondent was
neither valid nor is the effect thereof retroactive as to
cure his ineligibility and qualify him to hold the Office of
Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine
fully supports the validity of petitioner's proclamation as
duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent
Comelec, the first two of which are also at issue in G.R. No. 123755,
as follows:
1. Resolution16 of the Second Division, promulgated on
May 1, 1995, disqualifying Frivaldo from running for
governor of Sorsogon in the May 8, 1995 elections "on
the ground that he is not a citizen of the Philippines";
2. Resolution17 of the Comelec en banc, promulgated
on May 11, 1995; and
3. Resolution18 of the Comelec en banc, promulgated
also on May 11, 1995 suspending the proclamation of,
among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No.
123755. However, Frivaldo assails the above-mentioned resolutions
on a different ground: that under Section 78 of the Omnibus Election
Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a
certificate of candidacy. -- A verified petition seeking to
deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground
that any material representation contained therein as
required under Section 74 hereof is false. The petition
may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy
and shall be decided, after notice and hearing, not later
than fifteen days before the election. (Emphasis
supplied.)
the Comelec had no jurisdiction to issue said Resolutions
because they were not rendered "within the period allowed by
law" i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to
act on the petition for disqualification within the period of fifteen days
prior to the election as provided by law is a jurisdictional defect which
renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos.
120295 and 123755 since they are intimately related in their factual
environment and are identical in the ultimate question raised, viz.,
who should occupy the position of governor of the province of
Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties
and required them thereafter to file simultaneously their respective
memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be
restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it
seasonably cure his lack of citizenship as to qualify him to be
proclaimed and to hold the Office of Governor? If not, may it be given
retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino
citizenship a continuing bar to his eligibility to run for, be elected to or
hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory
petition in SPC No. 95-317 considering that said petition is not "a pre-
proclamation case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and
legal in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction
in promulgating the assailed Resolutions, all of which prevented
Frivaldo from assuming the governorship of Sorsogon, considering
that they were not rendered within the period referred to in Section 78
of the Omnibus Election Code, viz., "not later than fifteen days before
the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the other matters raised are
secondary to this.
The Local Government Code of 199119 expressly requires Philippine
citizenship as a qualification for elective local officials, including that of
provincial governor, thus:
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, or 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.
(b) Candidates for the position of
governor, vice governor or member of
the sangguniang panlalawigan, or
mayor, vice mayor or member of the
sangguniang panlungsod of highly
urbanized cities must be at least twenty-
three (23) years of age on election day.
x x x           x x x          x x x
Inasmuch as Frivaldo had been declared by this Court 20 as a non-
citizen, it is therefore incumbent upon him to show that he has
reacquired citizenship; in fine, that he possesses the qualifications
prescribed under the said statute (R.A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of
Congress, by naturalization or by repatriation. Frivaldo told this Court
in G.R. No. 10465422 and during the oral argument in this case that he
tried to resume his citizenship by direct act of Congress, but that the
bill allowing him to do so "failed to materialize, notwithstanding the
endorsement of several members of the House of Representatives"
due, according to him, to the "maneuvers of his political rivals." In the
same case, his attempt at naturalization was rejected by this Court
because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly
elected governor by the electorate of Sorsogon, with a margin of
27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in
1995 over the same opponent Raul Lee. Twice, he was judicially
declared a non-Filipino and thus twice disqualified from holding and
discharging his popular mandate. Now, he comes to us a third time,
with a fresh vote from the people of Sorsogon and a favorable
decision from the Commission on Elections to boot. Moreover, he now
boasts of having successfully passed through the third and last mode
of reacquiring citizenship: by repatriation under P.D. No. 725, with no
less than the Solicitor General himself, who was the prime opposing
counsel in the previous cases he lost, this time, as counsel for co-
respondent Comelec, arguing the validity of his cause (in addition to
his able private counsel Sixto S. Brillantes, Jr.). That he took his oath
of allegiance under the provisions of said Decree at 2:00 p.m. on June
30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should
have been proclaimed as the duly-elected governor of Sorsogon when
the Provincial Board of Canvassers met at 8:30 p.m. on the said date
since, clearly and unquestionably, he garnered the highest number of
votes in the elections and since at that time, he already reacquired his
citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with
serious defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed",
asserting that "then President Corazon Aquino exercising legislative
powers under the Transitory Provisions of the 1987 Constitution,
forbade the grant of citizenship by Presidential Decree or Executive
Issuances as the same poses a serious and contentious issue of
policy which the present government, in the exercise of prudence and
sound discretion, should best leave to the judgment of the first
Congress under the 1987 Constitution", adding that in her
memorandum dated March 27, 1987 to the members of the Special
Committee on Naturalization constituted for purposes of Presidential
Decree No. 725, President Aquino directed them "to cease and desist
from undertaking any and all proceedings within your functional area
of responsibility as defined under Letter of Instructions (LOI) No. 270
dated April 11, 1975, as amended."23
This memorandum dated March 27, 1987 24 cannot by any stretch of
legal hermeneutics be construed as a law sanctioning or authorizing a
repeal of P.D. No. 725. Laws are repealed only by subsequent
ones 25 and a repeal may be express or implied. It is obvious that no
express repeal was made because then President Aquino in her
memorandum -- based on the copy furnished us by Lee -- did not
categorically and/or impliedly state that P.D. 725 was being repealed
or was being rendered without any legal effect. In fact, she did not
even mention it specifically by its number or text. On the other hand, it
is a basic rule of statutory construction that repeals by implication are
not favored. An implied repeal will not be allowed "unless it is
convincingly and unambiguously demonstrated that the two laws are
clearly repugnant and patently inconsistent that they cannot co-
exist".26
The memorandum of then President Aquino cannot even be regarded
as a legislative enactment, for not every pronouncement of the Chief
Executive even under the Transitory Provisions of the 1987
Constitution can nor should be regarded as an exercise of her law-
making powers. At best, it could be treated as an executive policy
addressed to the Special Committee to halt the acceptance and
processing of applications for repatriation pending whatever
"judgment the first Congress under the 1987 Constitution" might
make. In other words, the former President did not repeal P.D. 725
but left it to the first Congress -- once created -- to deal with the
matter. If she had intended to repeal such law, she should have
unequivocally said so instead of referring the matter to Congress. The
fact is she carefully couched her presidential issuance in terms that
clearly indicated the intention of "the present government, in the
exercise of prudence and sound discretion" to leave the matter of
repeal to the new Congress. Any other interpretation of the said
Presidential Memorandum, such as is now being proffered to the
Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed
the repatriation proceedings," asserting that Frivaldo's application
therefor was "filed on June 29, 1995 . . . (and) was approved in just
one day or on June 30, 1995 . . .", which "prevented a judicious
review and evaluation of the merits thereof." Frivaldo counters that he
filed his application for repatriation with the Office of the President in
Malacañang Palace on August 17, 1994. This is confirmed by the
Solicitor General. However, the Special Committee was reactivated
only on June 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and re-
submitted the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent haste" in
the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special
Committee on Naturalization was intended solely for the personal
interest of respondent,"27 the Solicitor General explained during the
oral argument on March 19, 1996 that such allegation is simply
baseless as there were many others who applied and were
considered for repatriation, a list of whom was submitted by him to
this Court, through a Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the
presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings
were speeded up is by itself not a ground to conclude that such
proceedings were necessarily tainted. After all, the requirements of
repatriation under P.D. No. 725 are not difficult to comply with, nor are
they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special
Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-time entry into Philippine
political life, in repatriation the applicant is a former natural-born
Filipino who is merely seeking to reacquire his previous citizenship. In
the case of Frivaldo, he was undoubtedly a natural-born citizen who
openly and faithfully served his country and his province prior to his
naturalization in the United States -- a naturalization he insists was
made necessary only to escape the iron clutches of a dictatorship he
abhorred and could not in conscience embrace -- and who, after the
fall of the dictator and the re-establishment of democratic space,
wasted no time in returning to his country of birth to offer once more
his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor
General, were granted repatriation argues convincingly and
conclusively against the existence of favoritism vehemently posited by
Raul Lee. At any rate, any contest on the legality of Frivaldo's
repatriation should have been pursued before the Committee itself,
and, failing there, in the Office of the President, pursuant to the
doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to
be valid, nevertheless it could only be effective as at 2:00 p.m. of June
30, 1995 whereas the citizenship qualification prescribed by the Local
Government Code "must exist on the date of his election, if not when
the certificate of candidacy is filed," citing our decision in G.R.
10465430 which held that "both the Local Government Code and the
Constitution require that only Philippine citizens can run and be
elected to public office." Obviously, however, this was a
mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof.
Since the Court held his naturalization to be invalid, then the issue of
when an aspirant for public office should be a citizen was NOT
resolved at all by the Court. Which question we shall now directly rule
on.
Under Sec. 39 of the Local Government Code, "(a)n elective local
official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city,
or province . . . where he intends to be elected;
* a resident therein for at least one (1) year
immediately preceding the day of the election;
* able to read and write Filipino or any other local
language or dialect.
* In addition, "candidates for the position of governor . .
. must be at least twenty-three (23) years of age on
election day.
From the above, it will be noted that the law does not specify any
particular date or time when the candidate must possess citizenship,
unlike that for residence (which must consist of at least one year's
residency immediately preceding the day of election) and age (at least
twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an
elective public office,31 and the purpose of the citizenship qualification
is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country
or a unit of territory thereof. Now, an official begins to govern or to
discharge his functions only upon his proclamation and on the day the
law mandates his term of office to begin. Since Frivaldo re-assumed
his citizenship on June 30, 1995 -- the very day 32 the term of office of
governor (and other elective officials) began -- he was therefore
already qualified to be proclaimed, to hold such office and to
discharge the functions and responsibilities thereof as of said date. In
short, at that time, he was already qualified to govern his native
Sorsogon. This is the liberal interpretation that should give spirit, life
and meaning to our law on qualifications consistent with the purpose
for which such law was enacted. So too, even from a literal (as
distinguished from liberal) construction, it should be noted that Section
39 of the Local Government Code speaks of "Qualifications" of
"ELECTIVE OFFICIALS", not of candidates. Why then should such
qualification be required at the time of election or at the time of the
filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications -- unless otherwise expressly conditioned, as in the case
of age and residence -- should thus be possessed when the "elective
[or elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term -- in this case, on June 30,
1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li
Seng Giap & Sons, 33 if the purpose of the citizenship requirement is
to ensure that our people and country do not end up being governed
by aliens, i.e., persons owing allegiance to another nation, that aim or
purpose would not be thwarted but instead achieved by construing the
citizenship qualification as applying to the time of proclamation of the
elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the
oral argument34 to the effect that the citizenship qualification should be
possessed at the time the candidate (or for that matter the elected
official) registered as a voter. After all, Section 39, apart from requiring
the official to be a citizen, also specifies as another item of
qualification, that he be a "registered voter". And, under the law 35 a
"voter" must be a citizen of the Philippines. So therefore, Frivaldo
could not have been a voter -- much less a validly registered one -- if
he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the
requirement. If the law intended the citizenship qualification to be
possessed prior to election consistent with the requirement of being a
registered voter, then it would not have made citizenship a
SEPARATE qualification. The law abhors a redundancy. It therefore
stands to reason that the law intended CITIZENSHIP to be a
qualification distinct from being a VOTER, even if being a voter
presumes being a citizen first. It also stands to reason that the voter
requirement was included as another qualification (aside from
"citizenship"), not to reiterate the need for nationality but to require
that the official be registered as a voter IN THE AREA OR
TERRITORY he seeks to govern, i.e., the law states: "a registered
voter in the barangay, municipality, city, or province . . . where he
intends to be elected." It should be emphasized that the Local
Government Code requires an elective official to be a registered voter.
It does not require him to vote actually. Hence, registration -- not the
actual voting -- is the core of this "qualification". In other words, the
law's purpose in this second requirement is to ensure that the
prospective official is actually registered in the area he seeks to
govern -- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has
not disputed -- that he "was and is a registered voter of Sorsogon, and
his registration as a voter has been sustained as valid by judicial
declaration . . . In fact, he cast his vote in his precinct on May 8,
1995."36
So too, during the oral argument, his counsel steadfastly maintained
that "Mr. Frivaldo has always been a registered voter of Sorsogon. He
has voted in 1987, 1988, 1992, then he voted again in 1995. In fact,
his eligibility as a voter was questioned, but the court dismissed (sic)
his eligibility as a voter and he was allowed to vote as in fact, he voted
in all the previous elections including on May 8, 1995."3 7
It is thus clear that Frivaldo is a registered voter in the province where
he intended to be elected.
There is yet another reason why the prime issue of citizenship should
be reckoned from the date of proclamation, not necessarily the date of
election or date of filing of the certificate of candidacy. Section 253 of
the Omnibus Election Code 38 gives any voter, presumably including
the defeated candidate, the opportunity to question the ELIGIBILITY
(or the disloyalty) of a candidate. This is the only provision of the
Code that authorizes a remedy on how to contest before the Comelec
an incumbent's ineligibility arising from failure to meet the
qualifications enumerated under Sec. 39 of the Local Government
Code. Such remedy of Quo Warranto can be availed of "within ten
days after proclamation" of the winning candidate. Hence, it is only at
such time that the issue of ineligibility may be taken cognizance of by
the Commission. And since, at the very moment of Lee's proclamation
(8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and
indubitably a citizen, having taken his oath of allegiance earlier in the
afternoon of the same day, then he should have been the candidate
proclaimed as he unquestionably garnered the highest number of
votes in the immediately preceding elections and such oath had
already cured his previous "judicially-declared" alienage. Hence, at
such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the
repatriation of Frivaldo RETROACTED to the date of the filing of his
application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall
have no retroactive effect, unless the contrary is provided." But there
are settled exceptions40 to this general rule, such as when the statute
is CURATIVE or REMEDIAL in nature or when it CREATES NEW
RIGHTS.
According to Tolentino,41 curative statutes are those which undertake
to cure errors and irregularities, thereby validating judicial or
administrative proceedings, acts of public officers, or private deeds
and contracts which otherwise would not produce their intended
consequences by reason of some statutory disability or failure to
comply with some technical requirement. They operate on conditions
already existing, and are necessarily retroactive in operation.
Agpalo,42 on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing
existing obligations . . . (and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain evils. . . . By their very
nature, curative statutes are retroactive . . . (and) reach back to past
events to correct errors or irregularities and to render valid and
effective attempted acts which would be otherwise ineffective for the
purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes
relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within
the legal meaning of a retrospective law, nor within the general rule
against the retrospective operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new right,
and also provides for a new remedy, thereby filling certain voids in our
laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight
of "many Filipino women (who) had lost their Philippine citizenship by
marriage to aliens" and who could not, under the existing law (C.A.
No. 63, as amended) avail of repatriation until "after the death of their
husbands or the termination of their marital status" and who could
neither be benefitted by the 1973 Constitution's new provision
allowing "a Filipino woman who marries an alien to retain her
Philippine citizenship . . ." because "such provision of the new
Constitution does not apply to Filipino women who had married aliens
before said constitution took effect." Thus, P.D. 725 granted a new
right to these women -- the right to re-acquire Filipino citizenship even
during their marital coverture, which right did not exist prior to P.D.
725. On the other hand, said statute also provided a new remedy and
a new right in favor of other "natural born Filipinos who (had) lost their
Philippine citizenship but now desire to re-acquire Philippine
citizenship", because prior to the promulgation of P.D. 725 such
former Filipinos would have had to undergo the tedious and
cumbersome process of naturalization, but with the advent of P.D.
725 they could now re-acquire their Philippine citizenship under the
simplified procedure of repatriation.
The Solicitor General44 argues:
By their very nature, curative statutes are retroactive,
(DBP vs. CA, 96 SCRA 342), since they are intended
to supply defects, abridge superfluities in existing laws
(Del Castillo vs. Securities and Exchange Commission,
 96 Phil. 119) and curb certain evils (Santos vs. Duata,
14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the
defect in the existing naturalization law, specifically
C.A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their
husbands, and natural-born Filipinos who lost their
citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63
for reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the
aforementioned legal aberrations and thus its
provisions are considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the
preamble, it is unarguable that the legislative intent was precisely to
give the statute retroactive operation. "(A) retrospective operation is
given to a statute or amendment where the intent that it should so
operate clearly appears from a consideration of the act as a whole, or
from the terms thereof."45 It is obvious to the Court that the statute
was meant to "reach back" to those persons, events and transactions
not otherwise covered by prevailing law and jurisprudence. And
inasmuch as it has been held that citizenship is a political and civil
right equally as important as the freedom of speech, liberty of abode,
the right against unreasonable searches and seizures and other
guarantees enshrined in the Bill of Rights, therefore the legislative
intent to give retrospective operation to P.D. 725 must be given the
fullest effect possible. "(I)t has been said that a remedial statute must
be so construed as to make it effect the evident purpose for which it
was enacted, so that if the reason of the statute extends to past
transactions, as well as to those in the future, then it will be so applied
although the statute does not in terms so direct, unless to do so would
impair some vested right or violate some constitutional
guaranty."46 This is all the more true of P.D. 725, which did not specify
any restrictions on or delimit or qualify the right of repatriation granted
therein.
At this point, a valid question may be raised: How can the retroactivity
of P.D. 725 benefit Frivaldo considering that said law was enacted on
June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on
January 20, 1983, and applied for repatriation even later, on August
17, 1994?
While it is true that the law was already in effect at the time that
Frivaldo became an American citizen, nevertheless, it is not only the
law itself (P.D. 725) which is to be given retroactive effect, but even
the repatriation granted under said law to Frivaldo on June 30, 1995 is
to be deemed to have retroacted to the date of his application
therefor, August 17, 1994. The reason for this is simply that if, as in
this case, it was the intent of the legislative authority that the law
should apply to past events -- i.e., situations and transactions existing
even before the law came into being -- in order to benefit the greatest
number of former Filipinos possible thereby enabling them to enjoy
and exercise the constitutionally guaranteed right of citizenship, and
such legislative intention is to be given the fullest effect and
expression, then there is all the more reason to have the law apply in
a retroactive or retrospective manner to situations, events and
transactions subsequent to the passage of such law. That is, the
repatriation granted to Frivaldo on June 30, 1995 can and should be
made to take effect as of date of his application. As earlier mentioned,
there is nothing in the law that would bar this or would show a
contrary intention on the part of the legislative authority; and there is
no showing that damage or prejudice to anyone, or anything unjust or
injurious would result from giving retroactivity to his repatriation.
Neither has Lee shown that there will result the impairment of any
contractual obligation, disturbance of any vested right or breach of
some constitutional guaranty.
Being a former Filipino who has served the people repeatedly,
Frivaldo deserves a liberal interpretation of Philippine laws and
whatever defects there were in his nationality should now be deemed
mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would
prevent prejudice to applicants. If P.D. 725 were not to be given
retroactive effect, and the Special Committee decides not to act, i.e.,
to delay the processing of applications for any substantial length of
time, then the former Filipinos who may be stateless, as Frivaldo --
having already renounced his American citizenship -- was, may be
prejudiced for causes outside their control. This should not be. In case
of doubt in the interpretation or application of laws, it is to be
presumed that the law-making body intended right and justice to
prevail.4 7
And as experience will show, the Special Committee was able to
process, act upon and grant applications for repatriation within
relatively short spans of time after the same were filed. 48 The fact that
such interregna were relatively insignificant minimizes the likelihood of
prejudice to the government as a result of giving retroactivity to
repatriation. Besides, to the mind of the Court, direct prejudice to the
government is possible only where a person's repatriation has the
effect of wiping out a liability of his to the government arising in
connection with or as a result of his being an alien, and accruing only
during the interregnum between application and approval, a situation
that is not present in the instant case.
And it is but right and just that the mandate of the people, already
twice frustrated, should now prevail. Under the circumstances, there is
nothing unjust or iniquitous in treating Frivaldo's repatriation as having
become effective as of the date of his application, i.e., on August 17,
1994. This being so, all questions about his possession of the
nationality qualification -- whether at the date of proclamation (June
30, 1995) or the date of election (May 8, 1995) or date of filing his
certificate of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a
registered voter would also be deemed settled. Inasmuch as he is
considered as having been repatriated -- i.e., his Filipino citizenship
restored -- as of August 17, 1994, his previous registration as a voter
is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his repatriation not effectively
give him dual citizenship, which under Sec. 40 of the Local
Government Code would disqualify him "from running for any elective
local position?"49 We answer this question in the negative, as there is
cogent reason to hold that Frivaldo was really STATELESS at the
time he took said oath of allegiance and even before that, when he
ran for governor in 1988. In his Comment, Frivaldo wrote that he "had
long renounced and had long abandoned his American citizenship --
long before May 8, 1995. At best, Frivaldo was stateless in the interim
-- when he abandoned and renounced his US citizenship but before
he was repatriated to his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated December
19, 1995:51
By the laws of the United States, petitioner Frivaldo lost
his American citizenship when he took his oath of
allegiance to the Philippine Government when he ran
for Governor in 1988, in 1992, and in 1995. Every
certificate of candidacy contains an oath of allegiance
to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by
Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec
Second Division in SPA No. 95-028 as affirmed in toto by Comelec En
Banc in its Resolution of May 11, 1995 "became final and executory
after five (5) days or on May 17, 1995, no restraining order having
been issued by this Honorable Court.54 Hence, before Lee "was
proclaimed as the elected governor on June 30, 1995, there was
already a final and executory judgment disqualifying" Frivaldo. Lee
adds that this Court's two rulings (which Frivaldo now concedes were
legally "correct") declaring Frivaldo an alien have also become final
and executory way before the 1995 elections, and these "judicial
pronouncements of his political status as an American citizen
absolutely and for all time disqualified (him) from running for, and
holding any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying
Frivaldo was rendered in connection with the 1988 elections while that
in G.R. No. 104654 was in connection with the 1992 elections. That
he was disqualified for such elections is final and can no longer be
changed. In the words of the respondent Commission (Second
Division) in its assailed Resolution:55
 The records show that the Honorable Supreme Court
had decided that Frivaldo was not a Filipino citizen and
thus disqualified for the purpose of the 1988 and 1992
elections. However, there is no record of any "final
judgment" of the disqualification of Frivaldo as a
candidate for the May 8, 1995 elections. What the
Commission said in its Order of June 21, 1995
(implemented on June 30, 1995), directing the
proclamation of Raul R. Lee, was that Frivaldo was not
a Filipino citizen "having been declared by the
Supreme Court in its Order dated March 25, 1995, not
a citizen of the Philippines." This declaration of the
Supreme Court, however, was in connection with the
1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship
cannot govern a person's future status with finality. This is because a
person may subsequently reacquire, or for that matter lose, his
citizenship under any of the modes recognized by law for the purpose.
Hence, in Lee vs. Commissioner of Immigration,56 we held:
Everytime the citizenship of a person is material or
indispensable in a judicial or administrative case,
whatever the corresponding court or administrative
authority decides therein as to such citizenship is
generally not considered res judicata, hence it has to
be threshed out again and again, as the occasion
demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to
entertain the petition in SPC No. 95-317 because the only "possible
types of proceedings that may be entertained by the Comelec are a
pre-proclamation case, an election protest or a quo warranto case".
Again, Lee reminds us that he was proclaimed on June 30, 1995 but
that Frivaldo filed SPC No. 95-317 questioning his (Lee's)
proclamation only on July 6, 1995 -- "beyond the 5-day reglementary
period." Hence, according to him, Frivaldo's "recourse was to file
either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution57 has given the
Comelec ample power to "exercise exclusive original jurisdiction over
all contests relating to the elections, returns and qualifications of all
elective . . . provincial . . . officials." Instead of dwelling at length on
the various petitions that Comelec, in the exercise of its constitutional
prerogatives, may entertain, suffice it to say that this Court has
invariably recognized the Commission's authority to hear and decide
petitions for annulment of proclamations -- of which SPC No. 95-317
obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled:
The petitioner argues that after proclamation and
assumption of office, a pre-proclamation controversy is
no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no
longer be entertained by the COMELEC after the
winning candidate has been proclaimed.
(citing Gallardo vs. Rimando, 187 SCRA 463;
Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs.
COMELEC, 171 SCRA 468.) This rule, however, is
premised on an assumption that the proclamation is no
proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of
the power to make such declaration of nullity.
(citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani
vs. COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a
proclamation must "be done within ten (10) days following the
proclamation." Inasmuch as Frivaldo's petition was filed only six (6)
days after Lee's proclamation, there is no question that the Comelec
correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him
for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact
remains that he (Lee) was not the choice of the sovereign will," and
in Aquino vs. COMELEC,61 Lee is "a second placer, . . . just that, a
second placer."
In spite of this, Lee anchors his claim to the governorship on the
pronouncement of this Court in the aforesaid Labo62 case, as follows:
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 such holding is qualified by the next paragraph, thus:
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 Payor 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.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling
appropriate in this case because Frivaldo was in 1995 in an identical
situation as Labo was in 1992 when the Comelec's cancellation of his
certificate of candidacy was not yet final on election day as there was
in both cases a pending motion for reconsideration, for which reason
Comelec issued an (omnibus) resolution declaring that Frivaldo (like
Labo in 1992) and several others can still be voted for in the May 8,
1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show
that the electorate of Sorsogon was "fully aware in fact and in law" of
Frivaldo's alleged disqualification as to "bring such awareness within
the realm of notoriety;" in other words, that the voters intentionally
wasted their ballots knowing that, in spite of their voting for him, he
was ineligible. If Labo has any relevance at all, it is that the vice-
governor -- and not Lee -- should be pro- claimed, since in losing the
election, Lee was, to paraphrase Labo again, "obviously not the
choice of the people" of Sorsogon. This is the emphatic teaching
of Labo:
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.
Second. As we have earlier declared Frivaldo to have seasonably
reacquired his citizenship and inasmuch as he obtained the highest
number of votes in the 1995 elections, he -- not Lee -- should be
proclaimed. Hence, Lee's proclamation was patently erroneous and
should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of
the Comelec (Second Division) dated May 1, 1995 and the
confirmatory en banc Resolution of May 11, 1995 disqualifying him for
want of citizenship should be annulled because they were rendered
beyond the fifteen (15) day period prescribed by Section 78, of the
Omnibus Election Code which reads as follows:
Sec. 78. Petition to deny due course or to cancel a
certificate of candidacy. -- A verified petition seeking to
deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground
that any material representation contained therein as
required under Section 74 hereof is false. The petition
may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy
and shall be decided after notice and hearing, not later
than fifteen days before the election. (Emphasis
supplied.)
This claim is now moot and academic inasmuch as these resolutions
are deemed superseded by the subsequent ones issued by the
Commission (First Division) on December 19, 1995, affirmed en
banc63 on February 23, 1996; which both upheld his election. At any
rate, it is obvious that Section 78 is merely directory as Section 6 of
R.A. No. 6646 authorizes the Commission to try and decide petitions
for disqualifications even after the elections, thus:
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 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)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide,
Jr. argues that President Aquino's memorandum dated March 27,
1987 should be viewed as a suspension (not a repeal, as urged by
Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a
purely academic distinction because the said issuance is not a statute
that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the
first Frivaldo case;64 viz., "(u)nder CA No. 63 as amended by CA No.
473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . .
repatriation". He also contends that by allowing Frivaldo to register
and to remain as a registered voter, the Comelec and in effect this
Court abetted a "mockery" of our two previous judgments declaring
him a non-citizen. We do not see such abetting or mockery. The
retroactivity of his repatriation, as discussed earlier, legally cured
whatever defects there may have been in his registration as a voter
for the purpose of the 1995 elections. Such retroactivity did not
change his disqualifications in 1988 and 1992, which were the
subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole
remedy to question the ineligibility of a candidate, citing the Comelec's
authority under Section 78 of the Omnibus Election Code allowing the
denial of a certificate of candidacy on the ground of a false material
representation therein as required by Section 74. Citing Loong, he
then states his disagreement with our holding that Section 78 is
merely directory. We really have no quarrel. Our point is that Frivaldo
was in error in his claim in G.R. No. 120295 that the Comelec
Resolutions promulgated on May 1, 1995 and May 11, 1995 were
invalid because they were issued "not later than fifteen days before
the election" as prescribed by Section 78. In dismissing the petition in
G.R. No. 120295, we hold that the Comelec did not commit grave
abuse of discretion because "Section 6 of R.A. 6646 authorizes the
Comelec to try and decide disqualifications even after the elections."
In spite of his disagreement with us on this point, i.e., that Section 78
"is merely directory", we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295". One other
point. Loong, as quoted in the dissent, teaches that a petition to deny
due course under Section 78 must be filed within the 25-day period
prescribed therein. The present case however deals with the period
during which the Comelec may decide such petition. And we hold that
it may be decided even after the fifteen day period mentioned in
Section 78. Here, we rule that a decision promulgated by the Comelec
even after the elections is valid but Loong held that a
petition filed beyond the 25-day period is out of time. There is no
inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given
the unique factual circumstances of Frivaldo, repatriation may be
given retroactive effect. He argues that such retroactivity "dilutes" our
holding in the first Frivaldo case. But the first (and even the second
Frivaldo) decision did not directly involve repatriation as a mode of
acquiring citizenship. If we may repeat, there is no question that
Frivaldo was not a Filipino for purposes of determining his
qualifications in the 1988 and 1992 elections. That is settled. But his
supervening repatriation has changed his political status -- not in 1988
or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was
stateless prior to his repatriation, saying that "informal renunciation or
abandonment is not a ground to lose American citizenship". Since our
courts are charged only with the duty of determining who are
Philippine nationals, we cannot rule on the legal question of who are
or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens -- not who are the
citizens of other countries.65 The issue here is: the Comelec made a
finding of fact that Frivaldo was stateless and such finding has not
been shown by Lee to be arbitrary or whimsical. Thus, following
settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic
margins to Frivaldo in all three previous elections, should be declared
winner because "Frivaldo's ineligibility for being an American was
publicly known". First, there is absolutely no empirical evidence for
such "public" knowledge. Second, even if there is, such knowledge
can be true post facto only of the last two previous elections. Third,
even the Comelec and now this Court were/are still deliberating on his
nationality before, during and after the 1995 elections. How then can
there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government
Code refers to the qualifications of elective local officials, i.e.,
candidates, and not elected officials, and that the citizenship
qualification [under par. (a) of that section] must be possessed by
candidates, not merely at the commencement of the term, but by
election day at the latest. We see it differently. Section 39, par. (a)
thereof speaks of "elective local official" while par. (b) to (f) refer to
"candidates". If the qualifications under par. (a) were intended to apply
to "candidates" and not elected officials, the legislature would have
said so, instead of differentiating par. (a) from the rest of the
paragraphs. Secondly, if Congress had meant that the citizenship
qualification should be possessed at election day or prior thereto, it
would have specifically stated such detail, the same way it did in pars.
(b) to (f) far other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to
Frivaldo's repatriation on the ground, among others, that the law
specifically provides that it is only after taking the oath of allegiance
that applicants shall be deemed to have reacquired Philippine
citizenship. We do not question what the provision states. We hold
however that the provision should be understood thus: that after
taking the oath of allegiance the applicant is deemed to have
reacquired Philippine citizenship, which reacquisition (or repatriation)
is deemed for all purposes and intents to have retroacted to the date
of his application therefor.
In any event, our "so too" argument regarding the literal meaning of
the word "elective" in reference to Section 39 of the Local Authority
Code, as well as regarding Mr. Justice Davide's thesis that the very
wordings of P.D. 725 suggest non-retroactivity, were already taken up
rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must
be the first to uphold the Rule of Law." We agree -- we must all follow
the rule of law. But that is NOT the issue here. The issue
is how should the law be interpreted and applied in this case so it can
be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy
and perception of how to interpret and apply laws relating to elections:
literal or liberal; the letter or the spirit, the naked provision or its
ultimate purpose; legal syllogism or substantial justice; in isolation or
in the context of social conditions; harshly against or gently in favor of
the voters' obvious choice. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex
but little understood legalisms. Indeed, to inflict a thrice rejected
candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon this
Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local
Government Code is to be possessed by an elective official at the
latest as of the time he is proclaimed and at the start of the term of
office to which he has been elected. We further hold P.D. No. 725 to
be in full force and effect up to the present, not having been
suspended or repealed expressly nor impliedly at any time, and
Frivaldo's repatriation by virtue thereof to have been properly granted
and thus valid and effective. Moreover, by reason of the remedial or
curative nature of the law granting him a new right to resume his
political status and the legislative intent behind it, as well as his
unique situation of having been forced to give up his citizenship and
political aspiration as his means of escaping a regime he abhorred,
his repatriation is to be given retroactive effect as of the date of his
application therefor, during the pendency of which he was stateless,
he having given up his U.S. nationality. Thus, in contemplation of law,
he possessed the vital requirement of Filipino citizenship as of the
start of the term of office of governor, and should have been
proclaimed instead of Lee. Furthermore, since his reacquisition of
citizenship retroacted to August 17, 1994, his registration as a voter of
Sorsogon is deemed to have been validated as of said date as well.
The foregoing, of course, are precisely consistent with our holding that
lack of the citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once again, we
emphasize herein our previous rulings recognizing the Comelec's
authority and jurisdiction to hear and decide petitions for annulment of
proclamations.
This Court has time and again liberally and equitably construed the
electoral laws of our country to give fullest effect to the manifest will of
our people,66 for in case of doubt, political laws must be interpreted to
give life and spirit to the popular mandate freely expressed through
the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally
construed to the end that the will of the people in the
choice of public officials may not be defeated by mere
technical objections (citations omitted).67
The law and the courts must accord Frivaldo every possible
protection, defense and refuge, in deference to the popular will.
Indeed, this Court has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the survival of our
democracy. In any action involving the possibility of a reversal of the
popular electoral choice, this Court must exert utmost effort to resolve
the issues in a manner that would give effect to the will of the majority,
for it is merely sound public policy to cause elective offices to be filled
by those who are the choice of the majority. To successfully challenge
a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic68 to
constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people, would
ultimately create greater prejudice to the very democratic institutions
and juristic traditions that our Constitution and laws so zealously
protect and promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault
with his cause. The Court could have refused to grant retroactivity to
the effects of his repatriation and hold him still ineligible due to his
failure to show his citizenship at the time he registered as a voter
before the 1995 elections. Or, it could have disputed the factual
findings of the Comelec that he was stateless at the time of
repatriation and thus hold his consequent dual citizenship as a
disqualification "from running for any elective local position." But the
real essence of justice does not emanate from quibblings over
patchwork legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the ultimate
development of the social edifice. Thus, the Court struggled against
and eschewed the easy, legalistic, technical and sometimes harsh
anachronisms of the law in order to evoke substantial justice in the
larger social context consistent with Frivaldo's unique situation
approximating venerability in Philippine political life. Concededly, he
sought American citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously entertain any doubt
about his loyalty and dedication to this country. At the first opportunity,
he returned to this land, and sought to serve his people once more.
The people of Sorsogon overwhelmingly voted for him three times. He
took an oath of allegiance to this Republic every time he filed his
certificate of candidacy and during his failed naturalization bid. And let
it not be overlooked, his demonstrated tenacity and sheer
determination to re-assume his nationality of birth despite several
legal set-backs speak more loudly, in spirit, in fact and in truth than
any legal technicality, of his consuming intention and burning desire to
re-embrace his native Philippines even now at the ripe old age of 81
years. Such loyalty to and love of country as well as nobility of
purpose cannot be lost on this Court of justice and equity. Mortals of
lesser mettle would have given up. After all, Frivaldo was assured of a
life of ease and plenty as a citizen of the most powerful country in the
world. But he opted, nay, single-mindedly insisted on returning to and
serving once more his struggling but beloved land of birth. He
therefore deserves every liberal interpretation of the law which can be
applied in his favor. And in the final analysis, over and above Frivaldo
himself, the indomitable people of Sorsogon most certainly deserve to
be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The
assailed Resolutions of the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being
moot and academic. In any event, it has no merit.
No costs.
SO ORDERED.
7. Qualifications Usually Required of Public Officer
G.R. No. 87193 June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF
MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEE
ESTUYE, respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.
CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the
province of Sorsogon on January 22, 1988, and assumed office in due
time. On October 27, 1988, the League of Municipalities, Sorsogon
Chapter (hereafter, League), represented by its President, Salvador
Estuye, who was also suing in his personal capacity, filed with the
Commission on Elections a petition for the annulment of Frivaldo;
election and proclamation on the ground that he was not a Filipino
citizen, having been naturalized in the United States on January 20,
1983. In his answer dated May 22, 1988, Frivaldo admitted that he
was naturalized in the United States as alleged but pleaded the
special and affirmative defenses that he had sought American
citizenship only to protect himself against President Marcos. His
naturalization, he said, was "merely forced upon himself as a means
of survival against the unrelenting persecution by the Martial Law
Dictator's agents abroad." He added that he had returned to the
Philippines after the EDSA revolution to help in the restoration of
democracy. He also argued that the challenge to his title should be
dismissed, being in reality a quo warranto petition that should have
been filed within ten days from his proclamation, in accordance with
Section 253 of the Omnibus Election Code. The League, moreover,
was not a proper party because it was not a voter and so could not
sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses
but the respondent Commission on Elections decided instead by its
Order of January 20, 1988, to set the case for hearing on the merits.
His motion for reconsideration was denied in another Order dated
February 21, 1988. He then came to this Court in a petition
for certiorari and prohibition to ask that the said orders be set aside on
the ground that they had been rendered with grave abuse of
discretion. Pending resolution of the petition, we issued a temporary
order against the hearing on the merits scheduled by the COMELEC
and at the same time required comments from the respondents.
In their Comment, the private respondents reiterated their assertion
that Frivaldo was a naturalized American citizen and had not
reacquired Philippine citizenship on the day of the election on January
18, 1988. He was therefore not qualified to run for and be elected
governor. They also argued that their petition in the Commission on
Elections was not really for quo warranto under Section 253 of the
Omnibus Election Code. The ultimate purpose was to prevent Frivaldo
from continuing as governor, his candidacy and election being null
and void ab initio because of his alienage. Even if their petition were
to be considered as one for quo warranto, it could not have been filed
within ten days from Frivaldo's proclamation because it was only in
September 1988 that they received proof of his naturalization. And
assuming that the League itself was not a proper party, Estuye
himself, who was suing not only for the League but also in his
personal capacity, could nevertheless institute the suit by himself
alone.
Speaking for the public respondent, the Solicitor General supported
the contention that Frivaldo was not a citizen of the Philippines and
had not repatriated himself after his naturalization as an American
citizen. As an alien, he was disqualified from public office in the
Philippines. His election did not cure this defect because the
electorate of Sorsogon could not amend the Constitution, the Local
Government Code, and the Omnibus Election Code. He also joined in
the private respondent's argument that Section 253 of the Omnibus
Election Code was not applicable because what the League and
Estuye were seeking was not only the annulment of the proclamation
and election of Frivaldo. He agreed that they were also asking for the
termination of Frivaldo's incumbency as governor of Sorsogon on the
ground that he was not a Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines
because his naturalization as an American citizen was not "impressed
with voluntariness." In support he cited the Nottebohm Case, [(1955
I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's
naturalization in Liechtenstein was not recognized because it had
been obtained for reasons of convenience only. He said he could not
have repatriated himself before the 1988 elections because the
Special Committee on Naturalization created for the purpose by LOI
No. 27C had not yet been organized then. His oath in his certificate of
candidacy that he was a natural-born citizen should be a sufficient act
of repatriation. Additionally, his active participation in the 1987
congressional elections had divested him of American citizenship
under the laws of the United States, thus restoring his Philippine
citizenship. He ended by reiterating his prayer for the rejection of the
move to disqualify him for being time-barred under Section 253 of the
Omnibus Election Code.
Considering the importance and urgency of the question herein
raised, the Court has decided to resolve it directly instead of allowing
the normal circuitous route that will after all eventually end with this
Court, albeit only after a, long delay. We cannot permit this delay.
Such delay will be inimical to the public interest and the vital principles
of public office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction
over this question as the sole judge of all contests relating to the
election, returns and qualifications of the members of the Congress
and elective provincial and city officials. However, the decision on
Frivaldo's citizenship has already been made by the COMELEC
through its counsel, the Solicitor General, who categorically claims
that Frivaldo is a foreigner. We assume this stance was taken by him
after consultation with the public respondent and with its approval. It
therefore represents the decision of the COMELEC itself that we may
now review. Exercising our discretion to interpret the Rules of Court
and the Constitution, we shall consider the present petition as having
been filed in accordance with Article IX-A Section 7, of the
Constitution, to challenge the aforementioned Orders of the
COMELEC.
The basic question we must resolve is whether or not Juan G.
Frivaldo was a citizen of the Philippines at the time of his election on
January 18, 1988, as provincial governor of Sorsogon. All the other
issues raised in this petition are merely secondary to this basic
question.
The reason for this inquiry is the provision in Article XI, Section 9, of
the Constitution that all public officials and employees owe the State
and the Constitution "allegiance at all times" and the specific
requirement in Section 42 of the Local Government Code that a
candidate for local elective office must be inter alia a citizen of the
Philippines and a qualified voter of the constituency where he is
running. Section 117 of the Omnibus Election Code provides that a
qualified voter must be, among other qualifications, a citizen of the
Philippines, this being an indispensable requirement for suffrage
under Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo
described himself as a "natural-born" citizen of the Philippines,
omitting mention of any subsequent loss of such status. The evidence
shows, however, that he was naturalized as a citizen of the United
States in 1983 per the following certification from the United States
District Court, Northern District of California, as duly authenticated by
Vice Consul Amado P. Cortez of the Philippine Consulate General in
San Francisco, California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA
FRIVALDO, born on October 20, 1915, was naturalized
in this Court on January 20, 1983, and issued
Certificate of Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,
 
WILLIAM L. WHITTAKER
Clerk
by:
(Sgd.)
 
ARACELI V. BAREN
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he
expressly admitted it in his answer. Nevertheless, as
earlier noted, he claims it was "forced" on him as a
measure of protection from the persecution of the
Marcos government through his agents in the United
States.
The Court sees no reason not to believe that the
petitioner was one of the enemies of the Marcos
dictatorship. Even so, it cannot agree that as a
consequence thereof he was coerced into embracing
American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and
voluntary choice is totally unacceptable and must be
rejected outright.
There were many other Filipinos in the United States
similarly situated as Frivaldo, and some of them subject
to greater risk than he, who did not find it necessary —
nor do they claim to have been coerced — to abandon
their cherished status as Filipinos. They did not take
the oath of allegiance to the United States, unlike the
petitioner who solemnly declared "on oath, that I
absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign prince, potentate,
state or sovereignty of whom or which I have
heretofore been a subject or citizen," meaning in his
case the Republic of the Philippines. The martyred
Ninoy Aquino heads the impressive list of those
Filipinos in exile who, unlike the petitioner, held fast to
their Philippine citizenship despite the perils of their
resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the
international law principle of effective nationality which
is clearly not applicable to the case at bar. This
principle is expressed in Article 5 of the Hague
Convention of 1930 on the Conflict of Nationality Laws
as follows:
Art. 5. Within a third State a person
having more than one nationality shall
be treated as if he had only one. Without
prejudice to the application of its law in
matters of personal status and of any
convention in force, a third State shall,
of the nationalities which any such
person possesses, recognize
exclusively in its territory either the
nationality of the country in which he is
habitually and principally resident or the
nationality of the country with which in
the circumstances he appears to be in
fact most closely connected.
Nottebohm was a German by birth but a resident of
Guatemala for 34 years when he applied for and
acquired naturalization in Liechtenstein one month
before the outbreak of World War II. Many members of
his family and his business interests were in Germany.
In 1943, Guatemala, which had declared war on
Germany, arrested Nottebohm and confiscated all his
properties on the ground that he was a German
national. Liechtenstein thereupon filed suit on his
behalf, as its citizen, against Guatemala. The
International Court of Justice held Nottebohm to be still
a national of Germany, with which he was more closely
connected than with Liechtenstein.
That case is not relevant to the petition before us
because it dealt with a conflict between the nationality
laws of two states as decided by a third state. No third
state is involved in the case at bar; in fact, even the
United States is not actively claiming Frivaldo as its
national. The sole question presented to us is whether
or not Frivaldo is a citizen of the Philippines under our
own laws, regardless of other nationality laws. We can
decide this question alone as sovereign of our own
territory, conformably to Section 1 of the said
Convention providing that "it is for each State to
determine under its law who are its nationals."
It is also worth noting that Nottebohm was invoking his
naturalization in Liechtenstein whereas in the present
case Frivaldo is rejecting his naturalization in the
United States.
If he really wanted to disavow his American citizenship
and reacquire Philippine citizenship, the petitioner
should have done so in accordance with the laws of our
country. Under CA No. 63 as amended by CA No. 473
and PD No. 725, Philippine citizenship may be
reacquired by direct act of Congress, by naturalization,
or by repatriation.
While Frivaldo does not invoke either of the first two
methods, he nevertheless claims he has reacquired
Philippine citizenship by virtue of a valid repatriation.
He claims that by actively participating in the elections
in this country, he automatically forfeited American
citizenship under the laws of the United States. Such
laws do not concern us here. The alleged forfeiture is
between him and the United States as his adopted
country. It should be obvious that even if he did lose his
naturalized American citizenship, such forfeiture did not
and could not have the effect of automatically restoring
his citizenship in the Philippines that he had earlier
renounced. At best, what might have happened as a
result of the loss of his naturalized citizenship was that
he became a stateless individual.
Frivaldo's contention that he could not have repatriated
himself under LOI 270 because the Special Committee
provided for therein had not yet been constituted
seems to suggest that the lack of that body rendered
his repatriation unnecessary. That is far-fetched if not
specious Such a conclusion would open the floodgates,
as it were. It would allow all Filipinos who have
renounced this country to claim back their abandoned
citizenship without formally rejecting their adoptedstate
and reaffirming their allegiance to the Philippines.
It does not appear that Frivaldo has taken these
categorical acts. He contends that by simply filing his
certificate of candidacy he had, without more, already
effectively recovered Philippine citizenship. But that is
hardly the formal declaration the law envisions —
surely, Philippine citizenship previously disowned is not
that cheaply recovered. If the Special Committee had
not yet been convened, what that meant simply was
that the petitioner had to wait until this was done, or
seek naturalization by legislative or judicial
proceedings.
The argument that the petition filed with the
Commission on Elections should be dismissed for
tardiness is not well-taken. The herein private
respondents are seeking to prevent Frivaldo from
continuing to discharge his office of governor because
he is disqualified from doing so as a foreigner.
Qualifications for public office are continuing
requirements and must be possessed not only at the
time of appointment or election or assumption of office
but during the officer's entire tenure. Once any of the
required qualifications is lost, his title may be
seasonably challenged. If, say, a female legislator were
to marry a foreigner during her term and by her act or
omission acquires his nationality, would she have a
right to remain in office simply because the challenge
to her title may no longer be made within ten days from
her proclamation? It has been established, and not
even denied, that the evidence of Frivaldo's
naturalization was discovered only eight months after
his proclamation and his title was challenged shortly
thereafter.
This Court will not permit the anomaly of a person
sitting as provincial governor in this country while owing
exclusive allegiance to another country. The fact that
he was elected by the people of Sorsogon does not
excuse this patent violation of the salutary rule limiting
public office and employment only to the citizens of this
country. The qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of
the people as expressed through the ballot cannot cure
the vice of ineligibility, especially if they mistakenly
believed, as in this case, that the candidate was
qualified. Obviously, this rule requires strict application
when the deficiency is lack of citizenship. If a person
seeks to serve in the Republic of the Philippines, he
must owe his total loyalty to this country only, abjuring
and renouncing all fealty and fidelity to any other state.
It is true as the petitioner points out that the status of
the natural-born citizen is favored by the Constitution
and our laws, which is all the more reason why it
should be treasured like a pearl of great price. But once
it is surrendered and renounced, the gift is gone and
cannot be lightly restored. This country of ours, for all
its difficulties and limitations, is like a jealous and
possessive mother. Once rejected, it is not quick to
welcome back with eager arms its prodigal if repentant
children. The returning renegade must show, by an
express and unequivocal act, the renewal of his loyalty
and love.
WHEREFORE, the petition is DISMISSED and
petitioner JUAN G. FRIVALDO is hereby declared not a
citizen of the Philippines and therefore DISQUALIFIED
from serving as Governor of the Province of Sorsogon.
Accordingly, he is ordered to vacate his office and
surrender the same to the duly elected Vice-Governor
of the said province once this decision becomes final
and executory. The temporary restraining order dated
March 9, 1989, is LIFTED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras,
Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.
Cortes J., concurs in the result.
8. Qualifications Usually required of Public Officer
G.R. No. 90799 October 18, 1990
AUGUSTO L. GASPAR, petitioner,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION, and
ZENAIDA F. LANTING, respondents.
The City Legal Officer for petitioner.
Thelma Panganiban-Gaminde, Rogelio C. Limare and Dante G.
Huerta for Civil Service Commission.
RESOLUTION
 
NARVASA, J.:
Augusto L. Gaspar seeks the setting aside of the Decision of the Civil
Service Commission dated July 19, 1985 (affirmed by the Court of
Appeals), which revoked his appointment as Administrative Officer II
of the Parks Development Office, Manila, and directed the
appointment of Zenaida F. Lanting as such, in his stead.
Gaspar was the Chief of the Security Section of the Parks
Development Office of the City of Manila when Executive Order No.
81-01 was issued by the Governor of the Metro Manila Commission
on May 24, 1981. The Executive Order established a comprehensive
position classification and pay plan for MMC officers and employees,
and contained a provision reclassifying Gaspar's position of Chief,
Security Section, to Administrative Officer II. On April 25, 1983,
Gaspar was appointed to that position of Administrative Officer II,
effective on October 1, 1982.
Zenaida F. Lanting, then Senior Accounting Clerk in the same Parks
Development Office, filed with the Merit Systems Board a protest
against Gaspar's appointment as Administrative Officer II, contending
that she was better qualified for, and should have been named to, the
office.
After due proceedings, the Merit Systems Board (MSB) revoked
Gaspar's appointment and directed Lanting's appointment to the office
of Administrative Officer II, in a decision rendered on November 28,
1984. Gaspar appealed to the Civil Service Commission (CSC) .
After initially sustaining Gaspar (in Resolution No. 85-177, May 21,
1985), the CSC ultimately affirmed the judgment of the MSB by
Resolution numbered 85-291 promulgated on July 19, 1985 and, as
the MSB had done, directed "the appointment of ... Lanting to the
position of Administrative Officer II in the Parks Development
Office ..." The CSC said:
A comprehensive evaluation of the qualifications of the
parties would show that while both are at par in
experience and training, Lanting has an edge over
Gaspar in education. Her masteral degree in Public
Administration as compared to 36 academic units in
Business Administration course earned by Gaspar
provide her with the required knowledge in
management principles and techniques as well as
substantial preparation to assume higher duties and
responsibilities taking into account the supervisory
nature of the position. It can therefore be concluded
that Lanting is better qualified and more competent for
appointment as Administrative Officer II. Such being
the case, Lanting has better potentials to assume the
duties and responsibilities of this contested position.
There is no intimation whatever that Gaspar is not qualified for the
position of Administrative Officer II. On the contrary, it seems quite
evident that the Civil Service Commission considers both him and
Lanting to possess the minimum qualifications for the office, but that,
in the Commission's view, "Lanting has an edge over Gaspar in
education" and "has better potentials to assume the duties and
responsibilities of .. (the) contested position."
The same situation was presented to this Court in a case decided on
August 5, 1986, Luego v. Civil Service Commission, and Felicula
Tuozo.1 It will therefore be in accordance with the doctrine therein that
the appellate proceeding at bar will be resolved.
In Luego, the appointment by the City Mayor of Cebu of Felimon
Luego as Administrative Officer II, Administrative Division, Cebu City,
was protested by Felicula Tuozo and another employee. The issue
presented was Identical to that posed in the case at bar. It was,
according to the Court, "starkly simple: Is the Civil Service
Commission authorized to disapprove a permanent appointment on
the ground that another person is better qualified than the appointee
and, on the basis of this finding, order his replacement by the latter?"
The Court ruled that under the circumstances, and in light of the
relevant legal provisions, "all the Commission is actually allowed to do
is check whether or not the appointee possesses the appropriate civil
service eligibility or the required qualifications. If he does, his
appointment is approved; if not, it is disapproved. No other criterion is
permitted by law to be employed by the Commission when it acts on-
or as the (Civil Service Decree says, 'approves' or 'disapproves' — an
appointment made by the proper authorities."
The only function of the Civil Service Commission in cases of this
nature, according to Luego, is to review the appointment in the light of
the requirements of the Civil Service Law, and when it finds the
appointee to be qualified and all other legal requirements have been
otherwise satisfied, it has no choice but to attest to the
appointment. Luego finally points out that the recognition by the
Commission that both the appointee and the protestant are qualified
for the position in controversy renders it functus officio in the case and
prevents it from acting further thereon except to affirm the validity of
the former's appointment; it has no authority to revoke the
appointment simply because it considers another employee to be
better qualified for that would constitute an encroachment on the
discretion vested in the appointing authority.
The doctrine has since been subsequently applied, in Central Bank of
the Philippines, et al. v. Civil Service Commission, et al., G.R. Nos.
80455-56, April 10, 1989, and Maximo Gabriel v. Hon. Eufemio
Domingo, et al., etc., G.R. No. 87420, September 17, 1990. 2
The determination of who among several candidates for a vacant
position has the best qualifications is vested in the sound discretion of
the Department Head or appointing authority and not in the Civil
Service Commission. Every particular job in an office calls for both
formal and informal qualifications. Formal qualifications such as age,
number of academic units in a certain course, seminars attended,
etc., may be valuable but so are such intangibles as resourcefulness,
team spirit, courtesy, initiative, loyalty, ambition, prospects for the
future, and best interests of the service. Given the demands of a
certain job, who can do it best should be left to the Head of the office
concerned provided the legal requirements for the office are satisfied.
The Civil Service Commission cannot substitute its judgment for that
of the Head of Office in this regard.
In the case at bar, therefore, the respondent Commission acted
beyond the scope of its authority and with grave abuse of discretion in
revoking the petitioner's appointment and directing the appointment in
his stead of the private respondent.
WHEREFORE, Resolution No. 85-291 of the respondent Civil Service
Commission, dated July 19, 1985, is SET ASIDE and the petitioner,
Augusto L. Gaspar, is hereby declared to be entitled to the office of
Administrative Officer II of the Parks Development Office of the City of
Manila by virtue of the appointment extended to him on April 25, 1983,
effective on October 1, 1982.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and
Regalado, JJ., concur.
Paras and Feliciano, JJ., is on leave.
9. Qualifications Prescribed by Law for Certain Officer
G.R. No. 137329               August 9, 2000
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and
JACQUELINE M. SERIÑO, petitioners,
vs.
COMMISSION ON ELECTIONS and VICENTE Y.
EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification for
seeking and holding elective public office, in order to give candidates
the opportunity to be familiar with the needs, difficulties, aspirations,
potentials for growth and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office
seekers' qualifications and fitness for the job they aspire for. Inasmuch
as Vicente Y. Emano has proven that he, together with his family, (1)
had actually resided in a house he bought in 1973 in Cagayan de Oro
City; (2) had actually held office there during his three terms as
provincial governor of Misamis Oriental, the provincial capitol being
located therein; and (3) has registered as voter in the city during the
period required by law, he could not be deemed "a stranger or
newcomer" when he ran for and was overwhelmingly voted as city
mayor. Election laws must be liberally construed to give effect to the
popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of
Court seeking to set aside the January 18, 1999 Resolution 1 of the
Commission on Elections (Comelec) en banc in SPA No. 98-298,
which upheld the July 14, 1998 Resolution2 of the Comelec First
Division. The assailed Resolutions ruled that Private Respondent
Vicente Y. Emano possessed the minimum period of residence to be
eligible to vote in Cagayan de Oro City, as well as be voted mayor
thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as
follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected,
and proclaimed provincial governor of Misamis Oriental. It was his
third consecutive term as governor of the province. In his Certificate of
Candidacy dated March 12, 1995, his residence was declared to be in
Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano
executed a Voter Registration Record in Cagayan de Oro City
(geographically located in the Province of Misamis Oriental), a highly
urbanized city, in which he claimed 20 years of residence. On March
25, 1998, he filed his Certificate of Candidacy for mayor of the city,
stating therein that his residence for the preceding two years and five
months was at 1409 San Jose Street, Capistrano Subdivision, Gusa,
Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with
Emano, was Erasmo B. Damasing, counsel of herein petitioners. On
May 15, 1998, Petitioners Rogelio M. Torayno Sr., Generoso Q.
Eligan and Jacqueline M. Seriño, all residents of Cagayan de Oro
City, filed a Petition before the Comelec, docketed as SPA No. 98-
298, in which they sought the disqualification of Emano as mayoral
candidate, on the ground that he had allegedly failed to meet the one-
year residence requirement. Prior to the resolution of their Petition,
the Comelec proclaimed private respondent as the duly elected city
mayor. Thus, on May 29, 1998, petitioners filed another Petition
before the Comelec, this time for quo warranto,3 in which they sought
(1) the annulment of the election of private respondent; and (2) the
proclamation of Erasmo B. Damasing, who had garnered the next
highest number of votes, as the duly elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division
denied the Petition for Disqualification. Upon petitioners' Motion for
Reconsideration and Motion for Consolidation, the two cases were
consolidated.4
Ruling of the Comelec
As earlier stated, the Comelec en banc upheld the findings and
conclusions of the First Division, holding that "[t]he records clearly
show that the respondent is an actual resident of Cagayan de Oro
City for such a period of time necessary to qualify him to run for mayor
therein. This fact is clearly established by the respondent having a
house in the city which has been existing therein since 1973 and
where his family has been living since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial official
from residing and/or registering as a voter in a highly urbanized city
whose residents are not given the right to vote for and be elected to a
position in the province embracing such highly urbanized city as long
as he has complied with the requirements prescribed by law in the
case of a qualified voter.
"Neither can the list of voters submitted as evidence for the petitioners
showing that the respondent was a registered voter as of March 13,
1995 in Precinct No. 12, Barangay Poblacion, Tagoloan, Misamis
Oriental bolster the petitioner's argument that the respondent is not a
resident [or a] registered voter in Cagayan de Oro City since
registration in said Precinct No. 12 does not preclude the respondent
from registering anew in another place."
Hence, this recourse5 before this Court.
Issues
In their Memorandum,6 petitioners submit that the main issue is
whether the "Comelec gravely abused its discretion amounting to lack
of jurisdiction in issuing the questioned Resolutions." Allegedly, the
resolution of this issue would depend on the following:7
"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until he
filed his certificate of candidacy for mayor of Cagayan
de Oro City on March 25, 1998 in the May 11, 1998
election;
(b) asserting under oath [that he was] qualified to act
as governor of said province until said date; and
(c) admitting, in sworn statements, [that he was] a
resident of Misamis Oriental,
precluded him from acquiring a bona fide domicile of choice
for at least one (1) year in Cagayan de Oro City prior to the
May 11, 1998 elections, as to disqualify him for being a
candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing a
residence certificate in Cagayan de Oro City, holding offices
as governor of Misamis Oriental in the Capitol Building located
in Cagayan de Oro City and having a house therein where [he
had] stay[ed] during his tenure as governor, and registering as
a voter in said City in June 1997, would be legally sufficient, as
against the undisputed facts above enumerated, to constitute
a change of his domicile of birth in Tagoloan, Misamis Oriental
in favor of a new domicile of choice in Cagayan de Oro City for
at least one (1) year for purposes of qualifying him to run for
city mayor in the May 11, 1998 elections.
3. Whether or not Erasmo Damasing, the candidate for mayor
of Cagayan de Oro City in the May 11, 1998 elections, who
received the second highest number of votes, can be declared
winner, considering that respondent Emano was disqualified to
run for and hold said office and considering that his
disqualification or ineligibility had been extensively brought to
the attention and consciousness of the voters prior to the May
11, 1998 election as to attain notoriety, notwithstanding which
they still voted for him."
Petitioners are seeking the resolution of essentially two questions: (1)
whether private respondent had duly established his residence in
Cagayan de Oro City at least one year prior to the May 11, 1998
elections to qualify him to run for the mayorship thereof; and (2) if not,
whether Erasmo Damasing, the candidate who had received the
second highest number of votes, should be proclaimed mayor of the
city.
The Court’s Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the petitioners
was deliberated upon by the Court. We note that petitioners pray,
among others, for judgment "declaring Atty. Erasmo B. Damasing as
entitled to be proclaimed winner as mayor in the May 11, 1998
elections in Cagayan de Oro City."8 And yet, Damasing is not a party
to the instant "Petition for Certiorari pursuant to Rule[s] 64 and 65"
brought before us.
Under the Rules of Court, a quo warranto may be brought only by (1)
the solicitor general or (2) a public prosecutor or (3) a person claiming
to be entitled to the public office or position usurped or unlawfully held
or exercised by another.9 A reading of the Rules shows that
petitioners, none of whom qualify under any of the above three
categories, are without legal standing to bring this suit.
However, the present Petition finds its root in two separate cases filed
before the Comelec: (1) SPC 98-298 for disqualification and (2) EPC
98-62 for quo warranto. Under our election laws and the Comelec
Rules of Procedure, any voter may file a petition to disqualify a
candidate on grounds provided by law,10 or to contest the election of a
city officer on the ground of ineligibility or disloyalty to the
Republic.11 The petitioners herein, being "duly-registered voters" of
Cagayan de Oro City, therefore satisfy the requirement of said laws
and rules.12
Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile in
Tagoloan, Misamis Oriental, not in Cagayan de Oro City, as allegedly
shown by the following facts: (1) he had run and won as governor of
the province of Misamis Oriental for three consecutive terms
immediately preceding the 1998 elections; (2) in the pleadings he filed
in connection with an election protest against him relating to the 1995
election, he had stated that he was a resident of Tagoloan, Misamis
Oriental; (3) he had fully exercised the powers and prerogatives of
governor until he filed his Certificate of Candidacy for mayor on March
25, 1998.
Petitioners claim that in discharging his duties as provincial governor,
private respondent remained a resident of the province. They aver
that residence is a continuing qualification that an elective official must
possess throughout his term. Thus, private respondent could not have
changed his residence to Cagayan de Oro City while he was still
governor of Misamis Oriental.
Petitioners further contend that the following were not sufficient to
constitute a change of domicile: having a house in Cagayan de Oro
City, residing therein while exercising one's office as governor (the city
being the seat of government of the province), securing a residence
certificate and registering as voter therein.
Private respondent, on the other hand, alleges that he actually and
physically resided in Cagayan de Oro City while serving as provincial
governor for three consecutive terms, since the seat of the provincial
government was located at the heart of that city. 13 He also avers that
one's choice of domicile is a matter of intention, and it is the person
concerned who would be in the best position to make a choice. In this
case, Emano decided to adopt Cagayan de Oro City as his place of
residence after the May 1995 elections. In fact, in January 1997, he
secured his Community Tax Certificate at the City Treasurer's Office,
stating therein that he was a resident of 1409 San Jose Street,
Capistrano Subdivision, Gusa, Cagayan de Oro City. During the
general registration of voters in June 1997, he registered in one of the
precincts of Gusa, Cagayan de Oro City. This meant that, at the time,
Emano had been a voter of the city for the minimum period required
by law. No one has ever challenged this fact before any tribunal.
Private respondent contends further that his transfer of legal
residence did not ipso facto divest him of his position as provincial
governor. First, there is no law that prevents an elected official from
transferring residence while in office. Second, an elective official's
transfer of residence does not prevent the performance of that
official's duties, especially in private respondent's case in which the
seat of government became his adopted place of residence. Third, as
ruled in Frivaldo v. Comelec,14 the loss of any of the required
qualifications for election merely renders the official's title or right to
office open to challenge. In Emano's case, no one challenged his right
to the Office of Provincial Governor when he transferred his residence
to Cagayan de Oro City. Naturally, he continued to discharge his
functions as such, until he filed his candidacy for mayor in March
1998.
Lastly, Emano urges that the sanctity of the people's will, as
expressed in the election result, must be respected. He is not, after
all, a stranger to the city, much less to its voters. During his three
terms as governor of Misamis Oriental, his life and actuations have
been closely interwoven with the pulse and beat of Cagayan de Oro
City.
Public Respondent Comelec relies essentially on Romualdez-Marcos
v. Comelec15 in its Memorandum16 which supports the assailed
Resolutions, and which has been filed in view of the solicitor general's
Manifestation and Motion in Lieu of Comment.17 Thus, the poll body
argues that "x x x the fact of residence x x x ought to be decisive in
determining whether or not an individual has satisfied the
Constitution's residency qualification requirement."
Law on Qualifications of Local Elective Officials
The pertinent provision sought to be enforced is Section 39 of the
Local Government Code (LGC) of 1991,18 which provides for the
qualifications of local elective officials, as follows:
"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 x x x 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."
Generally, in requiring candidates to have a minimum period of
residence in the area in which they seek to be elected, the
Constitution or the law intends to prevent the possibility of a "stranger
or newcomer unacquainted with the conditions and needs of a
community and not identified with the latter from [seeking] an elective
office to serve that community."19 Such provision is aimed at excluding
outsiders "from taking advantage of favorable circumstances existing
in that community for electoral gain." 20 Establishing residence in a
community merely to meet an election law requirement defeats the
purpose of representation: to elect through the assent of voters those
most cognizant and sensitive to the needs of the community. This
purpose is "best met by individuals who have either had actual
residence in the area for a given period or who have been domiciled
in the same area either by origin or by choice."21
Facts Showing Change of Residence
In the recent en banc case Mamba-Perez v. Comelec,22 this Court
ruled that private respondent therein, now Representative Rodolfo E.
Aguinaldo of the Third District of Cagayan, had duly proven his
change of residence from Gattaran, Cagayan (part of the First District)
to Tuguegarao, Cagayan (part of the Third District in which he sought
election as congressman). He proved it with the following facts: (1) in
July 1990, he leased and lived in a residential apartment in
Magallanes Street, Tuguegarao, Cagayan; (2) in July 1995, he leased
another residential apartment in Kamias Street, Tanza, Tuguegarao,
Cagayan; (3) the January 18, 1998 Certificate of Marriage between
Aguinaldo and his second wife, Lerma Dumaguit; (4) the Certificate of
Live Birth of his second daughter; and (5) various letters addressed to
him and his family showed that he had been a resident of Tuguegarao
for at least one year immediately preceding the May 1998 elections.
The Court also stated that it was not "of much importance that in his
[Aguinaldo's] certificates of candidacy for provincial governor in the
elections of 1988, 1992, and 1995, private respondent stated that he
was a resident of Gattaran."23
In the case at bar, the Comelec found that private respondent and his
family had actually been residing in Capistrano Subdivision, Gusa,
Cagayan de Oro City, in a house he had bought in 1973. Furthermore,
during the three terms (1988-1998) that he was governor of Misamis
Oriental, he physically lived in that city, where the seat of the
provincial government was located. In June 1997, he also registered
as voter of the same city. Based on our ruling in Mamba-Perez, these
facts indubitably prove that Vicente Y. Emano was a resident of
Cagayan de Oro City for a period of time sufficient to qualify him to
run for public office therein. Moreover, the Comelec did not find any
bad faith on the part of Emano in his choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City
is a highly urbanized city whose voters cannot participate in the
provincial elections. Such political subdivisions and voting restrictions,
however, are simply for the purpose of parity in representation. The
classification of an area as a highly urbanized or independent
component city, for that matter, does not completely isolate its
residents, politics, commerce and other businesses from the entire
province -- and vice versa -- especially when the city is located at the
very heart of the province itself, as in this case.
Undeniably, Cagayan de Oro City was once an integral part of
Misamis Oriental and remains a geographical part of the province. Not
only is it at the center of the province; more important, it is itself the
seat of the provincial government. As a consequence, the provincial
officials who carry out their functions in the city cannot avoid residing
therein; much less, getting acquainted with its concerns and interests.
Vicente Y. Emano, having been the governor of Misamis Oriental for
three terms and consequently residing in Cagayan de Oro City within
that period, could not be said to be a stranger or newcomer to the city
in the last year of his third term, when he decided to adopt it as his
permanent place of residence.
Significantly, the Court also declared in Mamba-Perez that "although
private respondent declared in his certificates of candidacy prior to the
May 11, 1998 elections that he was a resident of Gattaran, Cagayan,
the fact is that he was actually a resident of the Third District not just
for one (1) year prior to the May 11, 1998 elections but for more than
seven (7) years since July 1990. His claim that he ha[s] been a
resident of Tuguegarao since July 1990 is credible considering that he
was governor from 1988 to 1998 and, therefore, it would be
convenient for him to maintain his residence in Tuguegarao, which is
the capital of the province of Cagayan."
Similarly in the instant case, private respondent was actually and
physically residing in Cagayan de Oro City while discharging his
duties as governor of Misamis Oriental. He owned a house in the city
and resided there together with his family. He even paid his 1998
community tax and registered as a voter therein. To all intents and
purposes of the Constitution and the law, he is a resident of Cagayan
de Oro City and eligible to run for mayor thereof.
To petitioners' argument that Emano could not have continued to
qualify as provincial governor if he was indeed a resident of Cagayan
de Oro City, we respond that the issue before this Court is whether
Emano's residence in the city qualifies him to run for and be elected
as mayor, not whether he could have continued sitting as governor of
the province. There was no challenge to his eligibility to continue
running the province; hence, this Court cannot make any
pronouncement on such issue. Considerations of due process prevent
us from adjudging matters not properly brought to us. On the basis,
however, of the facts proven before the Comelec, we hold that he has
satisfied the residence qualification required by law for the mayorship
of the city.
We stress that the residence requirement is rooted in the desire that
officials of districts or localities be acquainted not only with the metes
and bounds of their constituencies but, more important, with the
constituents themselves -- their needs, difficulties, aspirations,
potentials for growth and development, and all matters vital to their
common welfare. The requisite period would give candidates the
opportunity to be familiar with their desired constituencies, and
likewise for the electorate to evaluate the former's qualifications and
fitness for the offices they seek.
In other words, the actual, physical and personal presence of herein
private respondent in Cagayan de Oro City is substantial enough to
show his intention to fulfill the duties of mayor and for the voters to
evaluate his qualifications for the mayorship. Petitioners' very
legalistic, academic and technical approach to the residence
requirement does not satisfy this simple, practical and common-sense
rationale for the residence requirement.
Interpretation to Favor Popular Mandate
There is no question that private respondent was the overwhelming
choice of the people of Cagayan de Oro City.1âwphi1 He won by a
margin of about 30,000 votes.24 Thus, we find it apt to reiterate the
principle that the manifest will of the people as expressed through the
ballot must be given fullest effect. In case of doubt, political laws must
be interpreted to give life and spirit to the popular mandate. 25 Verily,
in Frivaldo v. Comelec,26 the Court held:
"x x x [T]his Court has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the survival of our
democracy. In any action involving the possibility of a reversal of the
popular electoral choice, this Court must exert utmost effort to resolve
the issues in a manner that would give effect to the will of the majority,
for it is merely sound public policy to cause elective offices to be filled
by those who are the choice of the majority. To successfully challenge
a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to
constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately
create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and
promote."
In the same vein, we stated in Alberto v. Comelec27 that "election
cases involve public interest; thus, laws governing election contests
must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical
objections."
Indeed, "it would be far better to err in favor of popular sovereignty
than to be right in complex but little understood legalisms."28
In sum, we hold that Respondent Comelec cannot be faulted with
abuse, much less grave abuse, of discretion in upholding private
respondent's election.
Corollary Issue: Effect of Disqualification of Winner on Second Placer
With the resolution of the first issue in the positive, it is obvious that
the second one posited by petitioners has become academic and
need not be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec
Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.
10. Meaning of Appointment
G.R. No. L-16808             January 3, 1921
ANDRES BORROMEO, plaintiff,
vs.
FERMIN MARIANO, defendant.
Fisher and DeWitt for plaintiff.
Attorney-General Feria for defendant.
MALCOLM, J.:
Quo warranto proceedings have been instituted in this court to
determine the right of the plaintiff and of the defendant to the office of
Judge of the Court of First Instance of the Twenty-fourth Judicial
District.
The only facts, and these are undisputed ones, which need be
noticed, are the following: Andres Borromeo was appointed and
commissioned as Judge of the Twenty-fourth Judicial District,
effective July 1, 1914. He duly qualified and took possession of the
office on that date. On February, 25, 1920, he was appointed Judge of
the Twenty-first Judicial District, and Fermin Mariano was appointed
Judge of the Twenty-fourth Judicial District. Judge Borromeo has
since the latter date consistently refused to accept appointment to the
Twenty-first Judicial District.
Judges of First Instance are appointed by the Governor-General with
the consent of the Philippine Senate to serve until they reach the age
of 65 years. (Adm. Code, secs. 65, 66, 148.) One Judge of First
Instance is commissioned for each judicial district, except the night.
(Sec. 154.) The oath of office of the judge is "filed with the clerk of the
court to which the affiant pertains and shall be entered upon its
records." (Sec. 128.) Judges of First Instance may only be detailed by
the Secretary of Justice to temporary duty in a district other than their
own for the purpose of trying land registration cases and for vacation
duty. (Sec. 155.) The concluding portion of section 155 of the
Administrative Code, to which particular attention is addressed by the
Attorney-General, is, "but nothing herein shall be construed to prevent
a judge of first instance of one district from being appointed to be
judge of another district." A Judge of First Instance can be removed
from office by the Governor-General only if in the judgment of the
Supreme Court sufficient cause shall exist involving serious
misconduct or inefficiency in office. (Sec. 173.)
The cardinal rule of statutory construction requires the court to give
effect to the general legislative intent if that can be discovered within
the four corners of the Act. When the object intended to be
accomplished by the statute is once clearly ascertained, general
words may be restrained to it and those of narrower import may be
expanded to embrace it, to effectuate the intent. Along with this
fundamental principle is another, equally well-established, that such a
construction is, if possible, to be adopted, as will give effect to all
provision of the statute. (2 Lewis' Sutherland, Statutory Construction,
pp. 662, et seq.; In re Allen [1903], 2 Phil., 630; Code of Civil
Procedure, sec. 287.)
Leaving out of consideration for the moment the last part of section
155 of the Administrative Code, the provisions of the Judiciary Law
are plain and unambiguous. Judges of First Instance are appointed
judges of the courts of first instance of the respective judicial districts
of the Philippines Islands. They are not appointed judges of first
instance of the Philippine Islands. They hold these positions of judges
of first instance of definite districts until they resign, retire, or are
removed through impeachment proceedings. The intention of the law
is to recognize separate and distinct judicial offices.
The concluding portion of section 155 of the Administrative Code,
although not beginning with the usual introductory word, "provided," is
nevertheless, in the nature of a proviso, and should be construed as
such. The office of a proviso is to limit the application of the law. It is
contrary to the nature of a proviso to enlarge the operation of the law.
It should not be construed so as to repeal or destroy the main
provisions of the statute. A proviso which is directly repugnant to the
purview or body of an Act is inoperative and void. (See generally, 25
R. C. L., pp. 984, et seq.; and specifically, the leading cases of
McKnight vs. Hodge [1909], 55 Wash., 289, 104 Pac., 504, 40 L. R. A.
[N.S.], 1207; McCormick vs. West Duluth [1891], 47 Minn., 272, 50
N.W., 128; Idaho Power & Light Co. vs. Blomquist [1916], 26 Idaho,
222; 141 Pac., 1083, Ann. Cas. [1916 E], p. 282, where these
principles concerning provisos are applied.)
To arrive at a correct decision with reference to the proviso before us,
let it first be recalled that the law is emphatic in its specification that,
save when judges of first instance are detailed to try land registration
cases or when assigned to vacation duty, "no judge of first instance
shall be required to do duty in any other district than that for which he
is commissioned." The keyword to the proviso which follows is
"appointed." This word should here be given its usual signification.
Many of the decisions follow the definition of "appoint" found in the
Century Dictionary and Encyclopedia. "Appoint" is there defined as "to
allot, set apart, or designate; nominate or authoritatively assign, as far
a use, or to a position or office." All the authorities united in saying
that the term "appoint" is well-known in law and whether regarded in
its legal or in its ordinary acceptation, is applied to the nomination or
designation of an individual. Appointment signifies no more than
selection for public office. (4 C. J., 1402, 1404, citing numerous
decisions.)
The effect to be given to the word "appoint" is corroborated by the
principles of the law of public officers. Appointment and qualification to
office are separate and distinct things. Appointment is the sole act of
those vested with the power to make it. Acceptance is the sole act of
the appointee. Persons may be chosen for office at pleasure; there is
no power in these Islands which can compel a man to accept the
office. (22 R. C. L. 423.) If, therefore, anyone could refuse
appointment as a judge of first instance to a particular district, when
once appointment to this district is accepted, he has exactly the same
right to refuse an appointment to another district. No other person
could be placed in the position of this Judge of First Instance since
another rule of public officers is, that an appointment may not be
made to an office which is not vacant. (29 Cyc., 1373.) In our
judgment, the language of the proviso to section 155 of the
Administrative Code, interpreted with reference to the law of public
officers, does not empower the Governor-General to force upon the
judge of one district an appointment to another district against his will,
thereby removing him from his district.
Returning again to the principle of statutory construction that a proviso
should not be given a meaning which would tend to render abortive
the main portions of the law, it should further be recalled that judges
of first instance are removable only through a fixed procedure.
Moreover, impeachment proceedings, as conducted by the Supreme
Court, may be in the nature of jurisdiction, conferred upon the
Supreme Court by ratification of the Congress of the United States,
which, it has uniformly been held, cannot be diminished. (We make no
ruling on this point because unnecessary for the resolution of the
case.) But, certainly, if a judge could be transferred from one district of
the Philippine Islands to another, without his consent, it would require
no great amount of imagination to conceive how this power could be
used to discipline the judge or as an indirect means of removal. A
judge who had, by a decision, incurred the ill-will of an attorney or
official, could, by the insistence of the disgruntled party, be removed
from one district, demoted, and transferred to another district, at
possibly a loss of salary, all without the consent of the judicial officer.
The only recourse of the judicial officer who should desire to maintain
his self-respect, would be to vacate the office and leave the service.
Unless we wish to nullify the impeachment section of the
Administrative Code, and thus possibly to encroach upon the
jurisdiction conferred upon the Supreme Court by the Organic Law,
section 155 must be interpreted so as to make it consistent therewith.
What we have said is reinforced by the authorities most directly in
point. In the early decision of Marbury vs. Madison ([1803], 1 Cranch,
137), the Supreme Court of the United States, in unmistakable terms,
explained the powers of the Judiciary in enforcing the Constitution as
the Supreme Law of the Land and held that the President of the
United States had no power to remove a justice of the peace of the
District of Columbia from office. Mr. Chief Justice Marshall said that
"When the officer is not removable at the will of the executive, the
appointment is not revocable, and cannot be annulled: it has
conferred legal rights which cannot be resumed. The discretion of the
executive is to be exercised, until the appointment has been made.
But having once made the appointment, his power over the office is
terminated, in all cases where, by law, the officer is not removable by
him. The right to the office is then in the person appointed, and he has
the absolute unconditional power of accepting or rejecting it." The
great jurist further or observed that "It is, emphatically, the province
and duty of the judicial department, to say what the law is"
In State of Louisiana vs. Downes ([1869], 21 La. Ann., 490), the
Supreme Court of Louisiana said that a judge of a court could, under
the Constitution of that State, only be removed from office by
impeachment, by address of the Legislature, or by proceeding under
the intrusion act. It was held that the appointment and commissioning
by the Governor of the State of a party to an office which has legally
been filled, without the vacancy being first declared according to law,
was an absolute nullity.
The Attorney-General brings to our notice an obsolete law which had
escaped us, and which, if any lingering doubts exist, would serve to
remove that. This law is Act No. 396, enacted by the Philippine
Commission in 1902. Section 4 thereof, separate and distinct from the
other provisions of the Act, and not tacked on as a proviso, provided
that "any judge of a Court of First Instance . . . may be transferred
from one judicial district to another by order of the Civil Governor, with
the advice and consent of the Commission. Any judge so transferred
shall, upon such transfer, cease the performance of judicial duties in
the district to which he was originally appointed, and shall be the
regular judge thereafter in the judicial district to which he as been so
assigned." But Act No. 396 was thrice repealed by the Philippine
Legislature; the first time, impliedly by the enactment of Act No. 2347,
the Judiciary Reorganization Act, and subsequently, expressly by the
Administrative Code of 1916 and the Administrative Code of 1917.
Instead, also, of continuing the phraseology of section 4 of Act No.
396, the Legislature merely included the proviso to which we have
alluded. It cannot, therefore, admit of doubt that the members of the
Philippine Legislature had before them the Act of the Philippine
Commission and preferred, not to perpetuate the old law, but to insert
language of their own. The purpose of the Philippine Legislature was
clearly to safeguard the interests of the judiciary, and this laudable
purpose, it is for us now to effectuate.
Far more convincing than precedent or argument are great and basic
principles long inherent in popular government intended to create an
independent judiciary. A history of the struggle for a fearless and an
incorruptible judiciary prepared to follow the law and to administer it
regardless of consequences, can be perused with ever-recurring
benefit. Since the early days of the Republic, the judicial system in the
United States, with certain exceptions which only served to
demonstrate more fully the excellence of the whole, has been viewed
with pride, and confidently relied upon for justice by the American
people. The American people considered it necessary "that there
should be a judiciary endowed with substantial and independent
powers and secure against all corrupting or perverting influences;
secure, also, against the arbitrary authority of the administrative
heads of the government." (Woodrow Wilson, Constitutional
Government in the United States, pp. 17, 142.) It was such a
conception of an independent judiciary which was instituted in the
Philippines by the American administration and which has since
served as one of the chief glories of the government and one of the
most priceless heritages of the Filipino people.
The Attorney-General in the argument in support of his motion for
reconsideration, quotes the last preceding sentence and says that he
dissents therefrom. The number of authoritative replies to the
proposition advanced by the law officer of the government relative to
the intention to establish an independent judiciary in these Islands, is
limited only by space in which to quote them. Possibly we can do no
better than to make our own the language of Mr. Justice Trent,
speaking for a unanimous court, in Severino vs. Governor-General
and Provincial Board of Occidental Negro ([1910], 16 Phil., 366, 384),
when he said: "This governments in the United States, now
possesses a complete governmental organization, with executive
legislative, and judicial departments, which are exercising functions as
independent of each other as the Federal or State governments." (For
the legislative version of the same idea, see Administrative Code, sec.
17.)
On occasion, the Supreme Court of the Philippine Islands has applied
the accepted theory of the division of powers, termed by the United
States Supreme Court as "one of the chief merits of the American
system of written constitutional law" (Kilbourn vs. Thompson [1881],
13 Otto, 168), and has unhesitatingly refused to interfere with the
official acts of the Governor-General or to intrude on the rights and
privileges of the Philippine Legislature (In the Patterson [1902], 1
Phil., 93; Severino vs. Governor-General and Provincial Board of
Occidental Negros, supra; In re McCulloch Dick [1918], 38 Phil., 41;
U.S. vs. Bull [1910], 15 Phil., 7; U.S. vs. Ten Yu [1912], 24 Phil., 1;
Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil.,
886.) As an instance of this class of decisions, in Veloso vs. Boards of
Canvassers of Leyte and Samar, supra, this court, in considering the
right of the Philippine Senate to be the judge of the elections, returns,
and qualifications of its elective members, said:
The grant of power to the Philippine Senate and the Philippine
House of Representatives, respectively is full, clear, and
complete. . . . The judiciary, with its traditional and careful
regard for the balance of powers, must permit this exclusive
privilege of the legislature to remain where the sovereign
authority has placed it. Since, therefore, the Philippine Senate
is made the sole judge of the elections, returns, and
qualifications of its elective members, this tribunal neither can,
nor ought, to take jurisdiction of the case.
Although much more reluctantly, and also much more infrequently we
are happy to add, the court has had to defend the judiciary against
legislative and executive encroachment. (Ocampo vs. Cabañgis
[1910], 15 Phil., 626; In re Guariña [1914], 24 Phil., 37;
Barrameda vs. Moir [1913], 25 Phil., 44; and Province of
Tarlac vs. Gale [1913], 26 Phil., 338.) As an instance of the latter
class of decisions, in Province of Tarlac vs. Gale, supra, Mr. Justice
Moreland, speaking for the court, said:
The judiciary is one of the coordinate branches of the
Government. (Forbes vs. Chuoco Tiaco, 16 Phil., 534; United
States vs. Bull, 15 Phil., 7.) Its preservation in its integrity and
effectiveness is necessary to the present form of
Government. . . . It is
clear . . . that each department is bound to preserve its own
existence if it live up to the duty imposed upon it as one of the
coordinate branches of the government. Whatever a person or
entity ought to do or must do in law, it has the power to do.
This being true, the judiciary has the power to maintain its
existence; and whatever is reasonably necessary to that end,
courts may do or order done. But the right to live, if that is all
there is of it, is a very small matter. The mere right to breathe
does not satisfy ambition or produce results. Therefore, courts
have not only the power to maintain their life, but they have
also the power to make that existence effective for the purpose
for which the judiciary was created. They can, by appropriate
means, do all things necessary to preserve and maintain every
quality needful to make the judiciary an effective institution of
Government. Courts have, therefore, inherent power to
preserve their integrity, maintain their dignity and to insure
effectiveness in the administration of justice. This is clear; for,
if the judiciary may be deprived of any one of its essential
attributes, or if any one of them may be seriously weakened by
the act of any person or official, then independence
disappears and subordination begins. The power to interfere is
the power to control, and the power to control is the power to
abrogate. The sovereign power has given life to the judiciary
and nothing less than the sovereign power can take it away or
render it useless. The power to withhold from the courts
anything really essential for the administration of justice is the
power to control and ultimately to destroy the efficiency of the
judiciary. Courts cannot, under their duty to their creator, the
sovereign power, permit themselves to be subordinated to any
person or official to which their creator did not itself
subordinate them.
A stirring plea has been made by the learned representative of the
Government for a decision which will work for the public welfare. We
agree that, under the peculiar conditions existing in the Philippines, it
is sometimes well for a judge not to remain indefinitely in a particular
district. But it is a far cry from this premise to the use of a method not
sanctioned by existing law and savoring of military discipline. Our
conception of good judges has been, and is, of men who have a
mastery of the principles of law, who discharge their duties in
accordance with law, who are permitted to perform the duties of the
office undeterred by outside influence, and who are independent and
self-respecting human units in a judicial system equal and coordinate
to the other two departments of government. We are pleased to think
of judges as of the type of the erudite Coke who, three centuries ago,
was removed from office because when asked "if in the future he
would delay a case at the King's order," replied: "I will do what
becomes me as a judge."
For the reasons given, we are of opinion that the reasonable force of
the language used in the proviso to section 155 of the Administrative
Code taken in connection with the whole of the Judiciary Law, and the
accepted canons of interpretation, and the principles of the law of
public officers, leave from for no other construction than that a Judge
of First Instance may be made a judge of another district only with his
consent.
It is our holding that the plaintiff Andres Borromeo is lawfully entitled IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners,
to the possession of the office of Judge of the Court of First Instance vs.
of the Twenty-Fourth Judicial District. It is our judgment that the COURT OF APPEALS and THE OFFICE OF THE
defendant Fermin Mariano shall be ousted from the office of Judge of PRESIDENT, Respondents.
the Twenty-fourth Judicial District, and the plaintiff placed in
possession of the same. The motion for reconsideration filed by the x-----------------------x
Attorney-General is denied. No costs shall be allowed. Let this be
entered as the order of the court. So ordered. G.R. No. 212030

Araullo, Street and Avanceña, JJ., concur. EDDIE U. TAMONDONG, Petitioner,

Johnson, J., signed the original decision, but was not present when vs.
the motion for reconsideration was filed and when this decisions was EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.
promulgated.
DECISION

11. Elements of a Valid Appointment CARPIO, J.:

G.R. No. 203372               June 16, 2015 The present consolidated cases involve four petitions: G.R. No.
203372 with Atty. Cheloy E. Velicaria-Garafil (Atty. Velicaria-Garafil),
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner, who was appointed State Solicitor II at the Office of the Solicitor
vs. General (OSG), as petitioner; G.R. No. 206290 with Atty. Dindo G.
OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL Venturanza (Atty. Venturanza), who was appointed Prosecutor IV
JOSE ANSELMO I. CADIZ, Respondents. (City Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with
Irma A. Villanueva (Villanueva), who was appointed Administrator for
x-----------------------x Visayas of the Board of Administrators of the Cooperative
Development Authority (CDA), and Francisca B. Rosquita (Rosquita),
G.R. No. 206290 who was appointed Commissioner of the National Commission of
Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030 with
ATTY. DINDO G. VENTURANZA, Petitioner, Atty. Eddie U. Tamondong (Atty. Tamondong), who was appointed
vs. member of the Board of Directors of the Subic Bay Metropolitan
OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity Authority (SBMA), as petitioner. All petitions question the
as the Secretary of the Department of Justice, CLARO A. constitutionality of Executive Order No. 2 (EO 2) for being inconsistent
ARELLANO, in his capacity as the Prosecutor General, and with Section 15, Article VII of the 1987 Constitution.
RICHARD ANTHONY D. FADULLON, in his capacity as the
Officer-in-Charge of the Office of the City Prosecutor of Quezon Petitioners seek the :reversal of the separate Decisions of the Court of
City, Respondents. Appeals (CA) that dismissed their petitions and upheld the
constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-
x-----------------------x Garafil is a Petition for Review on Certiorari, 1 assailing the
Decision2 dated 31 August 2012 of the CA in CA-G.R. SP No.
123662. G.R. No. 206290 filed by Atty. Venturanza is a Petition for
G.R. No. 209138
Review on Certiorari,3 assailing the Decision4 dated 31 August 2012
and Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No.
123659. G.R. No. 209138 filed by Villanueva and Rosquita is a
Petition for Certiorari,6 seeking to nullify the Decision7 dated 28 August
2013 of the CA in CA-G.R. SP Nos. 123662, 123663, and
123664.8 Villanueva and Rosquita filed a Petition-in-Intervention in the
consolidated cases before the CA. G.R. No. 212030 is a Petition for
Review on Certiorari,9 assailing the Decision10 dated 31 August 2012
of the CA in CAG.R. SP No. 123664 and Resolution 11 dated 7 April
2014 of the CA in CAG.R. SP Nos. 123662, 123663, and 123664.12
Facts of the Cases
Prior to the conduct of the May 2010 elections, then President Gloria
Macapagal-Arroyo (President Macapagal-Arroyo) issued more than
800 appointments to various positions in several government offices.
The ban on midnight appointments in Section 15, Article VII of the
1987 Constitution reads:
Two months immediately before the next presidential elections and up
to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or
endanger public safety.
Thus, for purposes of the 2010 elections, 10 March 2010 was the
cutoff date for valid appointments and the next day, 11 March 2010,
was the start of the ban on midnight appointments. Section 15, Article
VII of the 1987 Constitution recognizes as an exception to the ban on
midnight appointments only "temporary appointments to executive
positions when continued vacancies therein will prejudice public
service or endanger public safety." None of the petitioners claim that
their appointments fall under this exception.
Appointments
G.R. No. 203372
The paper evidencing Atty. Velicaria-Garafil's appointment as State
Solicitor II at the OSG was dated 5 March 2010.13 There was a
transmittal letter dated 8 March 2010 of the appointment paper from
the Office of the President (OP), but this transmittal letter was
received by the Malacañang Records Office (MRO) only on 13 May
2010. There was no indication as to the OSG's date of receipt of the
appointment paper. On 19 March 2010, the OSG's Human Resources
Department called up Atty. Velicaria-Garafil to schedule her oath-
taking. Atty. Velicaria-Garafil took her oath of office as State Solicitor
II on 22 March 2010 and assumed her position on 6 April 2010.
G.R. No. 206290
The paper evidencing Atty. Venturanza's appointment as Prosecutor
IV (City Prosecutor) of Quezon City was dated 23 February 2010.14 It
is apparent, however, that it was only on 12 March 2010 that the OP,
in a letter dated 9 March 2010, transmitted Atty. Venturanza's
appointment paper to then Department of Justice (DOJ) Secretary
Alberto C. Agra.15 During the period between 23 February and 12
March 2010, Atty. Venturanza, upon verbal advice from Malacañang
of his promotion but without an official copy of his appointment paper,
secured clearances from the Civil Service Commission
(CSC),16 Sandiganbayan,17 and the DOJ.18 Atty. Venturanza took his
oath of office on 15 March 2010, and assumed office on the same
day.
G.R. No. 209138
The paper evidencing Villanueva's appointment as Administrator for
Visayas of the Board of Administrators of the CDA was dated 3 March
2010.19 There was no transmittal letter of the appointment paper from
the OP. Villanueva took her oath of office on 13 April 2010.
The paper evidencing Rosquita's appointment as Commissioner,
representing Region I and the Cordilleras, of the NCIP was dated 5
March 2010.20 Like Villanueva, there was no transmittal letter of the
appointment paper from the OP. Rosquita took her oath of office on
18 March 2010. G.R. No. 212030
The paper evidencing Atty. Tamondong's appointment as member,
representing the private sector, of the SBMA Board of Directors was
dated 1 March 2010.21 Atty. Tamondong admitted that the
appointment paper was received by the Office of the SBMA Chair on
25 March 201022 and that he took his oath of office on the same
day.23 He took another oath of office on 6 July 2010 as "an act of extra
 caution because of the rising crescendo of noise from the new political THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS,
mandarins against the so-called 'midnight appointments."'24 AND FOR OTHER PURPOSES.

To summarize, the pertinent dates for each petitioner are as follows: WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that
"Two months immediately before the next presidential elections and
R. No. Date of Date of Date of Date of Assumptionup to the end of his term, a President or Acting President shall not
Appointment Transmittal Receipt by Oath of of Office make appointments, except temporary appointments to executive
Letter Letter MRO Office positions when continued vacancies therein will prejudice public
service or endanger public safety."; WHEREAS, in the case of "In re:
3372 Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and
13 May 22 March
tty. Velicaria- 5 March 2010 8 March 2010 6 April 2010Hon. Vallarta as Judges of the Regional Trial Court of Branch 62 of
2010 2010
arafil) Bago City and Branch 24 of Cabanatuan City, respectively" (A.M. No.
98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this
6290 provision to mean that the President is neither required to make
23 February 12 March 15 March 15 March
tty. 9 March 2010 appointments nor allowed to do so during the two months immediately
2010 2010 2010 2010
nturanza) before the next presidential elections and up to the end of her term.
9138 13 April The only known exceptions to this prohibition are (1) temporary
3 March 2010   4 May 2010   appointments in the executive positions when continued vacancies
llanueva) 2010
will prejudice public service or endanger public safety and in the light
9138 13 May 18 March of the recent Supreme Court decision in the case of De Castro, et al.
5 March 2010    
osquita) 2010 2010 vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2)
25 March appointments to the Judiciary;
2030
2010 and
tty. 1 March 2010       WHEREAS, Section 261 of the Omnibus Election Code provides that:
6 July
mondong)
2010
"Section 261. Prohibited Acts.-The following shall be guilty of an
election offense:
Issuance of EO 2
(g) Appointments of new employees, creation of new
On 30 June 2010, President Benigno S. Aquino III (President Aquino)
position, promotion, or giving salary increases. - During
took his oath of office as President of the Republic of the Philippines.
the period of forty-five days before a regular election
On 30 July 2010, President Aquino issued EO 2 recalling,
and thirty days before a special election.
withdrawing, and revoking appointments issued by President
Macapagal-Arroyo which violated the constitutional ban on midnight
(1) Any head, official or appointing officer of a
appointments.
government office, agency or instrumentality, whether
national or local, including government-owned or
The entirety of EO 2 reads:
controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or
EXECUTIVE ORDER NO. 2 creates and fills any new position, except upon prior
authority to the Commission. The Commission shall not
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS grant the authority sought unless it is satisfied that the
ISSUED BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF position to be filled is essential to the proper functioning
 of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the
election.
As an exception to the foregoing provisions, a new
employee may be appointed in the case of urgent
need:
Provided, however, that notice of the appointment shall
be given to the Commission within three days from the
date of the appointment. Any appointment or hiring in
violation of this provision shall be null and void.
(2) Any government official who promotes or gives any
increase of salary or remuneration or privilege to any
government official or employee, including those in
government-owned or controlled corporations.";
WHEREAS, it appears on record that a number of appointments were
made on or about 10 March 2010 in complete disregard of the intent
and spirit of the constitutional ban on midnight appointment and which
deprives the new administration of the power to make its own
appointment;
WHEREAS, based on established jurisprudence, an appointment is
deemed complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is
necessary to uphold the principle that appointments to the civil service
must be made on the basis of merit and fitness, it is imperative to
recall, withdraw, and revoke all appointments made in violation of the
letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the
powers vested in me by the Constitution as President of the
Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. - The following
appointments made by the former President and other appointing
authorities in departments, agencies, offices, and instrumentalities,
including government-owned or controlled corporations, shall be
considered as midnight appointments:
(a) Those made on or after March 11, 2010, including
all appointments bearing dates prior to March 11, 2010
where the appointee has accepted, or taken his oath,
or assumed public office on or after March 11, 2010,
except temporary appointments in the executive
positions when continued vacancies will prejudice
public service or endanger public safety as may be
determined by the appointing authority.
(b) Those made prior to March 11, 2010, but to take
effect after said date or appointments to office that
would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the
period of 45 days prior to the May 10, 2010 elections in
violation of Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight
Appointments. Midnight appointments, as defined under Section 1,
are hereby recalled, withdrawn, and revoked. The positions covered
or otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. - When necessary to maintain
efficiency in public service and ensure the continuity of government
operations, the Executive Secretary may designate an officer-in-
charge (OIC) to perform the duties and discharge the responsibilities
of any of those whose appointment has been recalled, until the
replacement of the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. - All executive issuances, orders,
rules and regulations or part thereof inconsistent with the provisions of
this Executive Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. - If any section or provision of this
executive order shall be declared unconstitutional or invalid, the other
sections or provision not affected thereby shall remain in full force and
effect.
SECTION 6. Effectivity. - This Executive order shall take effect
immediately.
DONE in the City of Manila, this 30th day of July, in the year Two
Thousand and Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor
General (Sol. Gen. Cadiz). On 6 August 2010, Sol. Gen. Cadiz
instructed a Senior Assistant Solicitor General to inform the officers
and employees affected by EO 2 that they were terminated from
service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010 without any
knowledge of her termination. She was made to return the office-
issued laptop and cellphone, and was told that her salary ceased as
of 7 August 2010. On 12 August 2010, Atty. Velicaria-Garafil was
informed that her former secretary at the OSG received a copy of a
memorandum on her behalf. The memorandum, dated 9 August 2010,
bore the subject "Implementation of Executive Order No. 2 dated 30
July 2010" and was addressed to the OSG's Director of Finance and
Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327)
before this Court on 1 September 2010. The petition prayed for the
nullification of EO 2, and for her reinstatement as State Solicitor II
without loss of seniority, rights and privileges, and with full backwages
from the time that her salary was withheld.26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile
transmission an undated copy of DOJ Order No. 556. DOJ Order No.
556, issued by DOJ Secretary Leila M. De Lima (Sec. De Lima),
designated Senior Deputy State Prosecutor Richard Anthony D.
Fadullon (Pros. Fadullon) as Officer-in-Charge of the Office of the City
Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15
September 2010, Atty. Venturanza asked for clarification of his status,
duties, and functions since DOJ Order No. 556 did not address the
same. Atty. Venturanza also asked for a status quo ante order to
prevent Pros. Fadullon ·from usurping the position and functions of
the City Prosecutor of Quezon City. Atty. Venturanza also wrote a
letter to President Aquino on the same day, and sought reaffirmation
of his promotion as City Prosecutor of Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated 25
August 2010 from Sec. De Lima which directed him to relinquish the
office to which he was appointed, and to cease from performing its
functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus
with Urgent Prayer for Status Quo Ante Order, Temporary Restraining
Order and/or Preliminary Mandatory Injunction (G.R. No. 193 867)
before this Court on 14 October 2010.27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the basis
of EO 2. On 3 August 2010, Villanueva and Rosquita sought to
intervene in G.R. No. 192991.28 On 1 October 2010, Executive
Secretary Paquito N. Ochoa, Jr. revoked Rosquita's appointment as
NCIP Commissioner.29 On 13 October 2010, Villanueva and Rosquita
notified this Court that they wanted to intervene in Atty. Tamondong's
petition (G.R. No. 192987) instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of Directors on
30 July 2010. He filed a petition for prohibition, declaratory relief and
preliminary injunction with prayer for temporary restraining order (G.R.
No. 192987) before this Court on 9 August 2010. The petition prayed
for the prohibition of the implementation of EO 2, the declaration of his
appointment as legal, and the declaration of EO 2 as
unconstitutional.30
Referral to CA
There were several petitions31 and motions for intervention32 that
challenged the constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the
petitions, motions for intervention, as well as various letters, to the CA
for further proceedings, including the reception and assessment of the
evidence from all parties. We defined the issues as follows:
1. Whether the appointments of the petitioners and intervenors
were midnight appointments within the coverage of EO 2;
2. Whether all midnight appointments, including those of
petitioners and intervenors, were invalid;
3 . Whether the appointments of the petitioners and
intervenors were made with undue haste, hurried maneuvers,
for partisan reasons, and not in accordance with good faith;
and
4. Whether EO 2 violated the Civil Service Rules on
Appointment.33
This Court gave the CA the authority to resolve all pending matters
and applications, and to decide the issues as if these cases were
originally filed with the CA.
Rulings of the CA
Even though the same issues were raised in the different petitions,
the CA promulgated separate Decisions for the petitions. The CA
consistently ruled that EO 2 is constitutional. The CA, however, issued
different rulings as to the evaluation of the circumstances of
petitioners' appointments. In the cases of Attys. Velicaria-Garafil and
Venturanza, the CA stated that the OP should consider the
circumstances of their appointments. In the cases of Villanueva,
Rosquita, and Atty. Tamondong, the CA explicitly stated that · the
revocation of their appointments was proper because they were
midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31
August 2012. The CA ruled that EO 2 is not unconstitutional.
However, the CA relied on Sales v. Carreon34 in ruling that the OP
should evaluate whether Atty. Velicaria-Garafil's appointment had
extenuating circumstances that might make it fall outside the ambit of
EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as
State Solicitor II at the OSG is hereby referred to the Office of the
President which has the sole authority and discretion to pass upon the
same.
SO ORDERED.35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP
No. 123664. The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is hereby
DISMISSED. Executive Order No. 2 is hereby declared NOT
UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie
Tamondong's appointment as Director of Subic Bay Metropolitan
Authority is VALID for being a midnight appointment.
SO ORDERED.39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether
petitioners' appointments violate Section 15, Article VII of the 1987
Constitution, and (2) whether EO 2 is constitutional. Ruling of the
Court
The petitions have no merit. All of petitioners' appointments are
midnight appointments and are void for violation of Section 15, Article
VII of the 1987 Constitution. EO 2 is constitutional. Villanueva and
Rosquita, petitioners in G.R. No. 209138, did not appeal the CA's
ruling under Rule 45, but instead filed a petition for certiorari under
Rule 65. This procedural error alone warrants an outright dismissal of
G.R. No. 209138. Even if it were correctly filed under Rule 45, the
petition should still be dismissed for being filed out of time. 40 There
was also no explanation as to why they did not file a motion for
reconsideration of the CA's Decision. Midnight Appointments
This ponencia and the dissent both agree that the facts in all these
cases show that "none of the petitioners have shown that their
appointment papers (and transmittal letters) have been issued (and
released) before the ban."41 The dates of receipt by the MRO, which in
these cases are the only reliable evidence of actual transmittal of the
appointment papers by President Macapagal-Arroyo, are dates clearly
falling during the appointment ban. Thus, this ponencia and the
dissent both agree that all the appointments in these cases are
midnight appointments in violation of Section 15, Article VII of the
1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post
is a process that takes several steps to complete. Any valid
appointment, including one made under the exception provided in
Section 15, Article VII of the 1987 Constitution, must consist of the
President signing an appointee's appointment paper to a vacant
office, the official transmittal of the appointment paper (preferably
through the MRO), receipt of the appointment paper by the appointee,
and acceptance of the appointment by the appointee evidenced by his
or her oath of office or his or her assumption to office.
Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of
the 1987 Constitution. Aytona defined "midnight or last minute"
appointments for Philippine jurisprudence.1âwphi1 President Carlos
P. Garcia submitted on 29 December 1961, his last day in office, 350
appointments, including that of Dominador R. Aytona for Central Bank
Governor. President Diosdado P. Macapagal assumed office on 30
December 1961, and issued on 31 December 1961 Administrative
Order No. 2 recalling, withdrawing, and cancelling all appointments
made by President Garcia after 13 December 1961 (President
Macapagal's proclamation date). President Macapagal appointed
Andres V. Castillo as Central Bank Governor on 1 January 1962. This
Court dismissed Aytona's quo warranto proceeding against Castillo,
and upheld Administrative Order No. 2's cancellation of the "midnight
or last minute" appointments. We wrote:
x x x But the issuance of 350 appointments in one night and the
planned induction of almost all of them a few hours before the
inauguration of the new President may, with some reason, be
regarded by the latter as an abuse of Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill all vacant
positions irrespective of fitness and other conditions, and thereby to
deprive the new administration of an opportunity to make the
corresponding appointments.
x x x Now it is hard to believe that in signing 350 appointments in one
night, President Garcia exercised such "double care" which was
required and expected of him; and therefore, there seems to be force
to the contention that these appointments fall beyond the intent and
spirit of the constitutional provision granting to the Executive authority
to issue ad interim appointments.
Under the circumstances above described, what with the separation
of powers, this Court resolves that it must decline to disregard the
Presidential .Administrative Order No. 2, cancelling such "midnight" or
"last-minute" appointments.
Of course the Court is . aware of many precedents to the effect that
once an appointment has been issued, it cannot be reconsidered,
specially where the appointee has qualified. But none of them refer to
mass ad interim appointments (three hundred and fifty), issued in the
last hours of an outgoing Chief Executive, in a setting similar to that
outlined herein. On the other hand, the authorities admit of
exceptional circumstances justifying revocation and if any
circumstances justify revocation, those described herein should fit the
exception.
Incidentally, it should be stated that the underlying reason for denying
the power to revoke after the appointee has qualified is the latter's
equitable rights. Yet it is doubtful if such equity might be successfully
set up in the present situation, considering the rush conditional
appointments, hurried maneuvers and other happenings detracting
from that degree of good faith, morality and propriety which form the
basic foundation of claims to equitable relief. The appointees, it might
be argued, wittingly or unwittingly cooperated with the stratagem to
beat the deadline, whatever the resultant consequences to the dignity
and efficiency of the public service. Needless to say, there are
instances wherein not only strict legality, but also fairness, justice and
righteousness should be taken into account.43
During the deliberations for the 1987 Constitution, then Constitutional
Commissioner (now retired Supreme Court Chief Justice) Hilario G.
Davide, Jr. referred to this Court's ruling in Aytona and stated that his
proposal seeks to prevent a President, whose term is about to end,
from preempting his successor by appointing his own people to
sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the
term of the President, he may prolong his rule indirectly by appointing
people to these sensitive positions, like the commissions, the
Ombudsman, the judiciary, so he could perpetuate himself in power
even beyond his term of office; therefore foreclosing the right of his
successor to make appointments to these positions. We should
realize that the term of the President is six years and under what we
had voted on, there is no reelection for him. Yet he can continue to
rule the country through appointments made about the end of his term
to these sensitive positions.44
The 1986 Constitutional Commission put a definite period, or an
empirical value, on Aytona's intangible "stratagem to beat the
deadline," and also on the act of "preempting the President's
successor," which shows a lack of "good faith, morality and propriety."
Subject to only one exception, appointments made during this period
are thus automatically prohibited under the Constitution, regardless of
the appointee's qualifications or even of the President's motives. The
period for prohibited appointments covers two months before the
elections until the end of the President's term. The Constitution, with a
specific exception, ended the President's power to appoint "two
months immediately before the next presidential elections." For an
appointment to be valid, it must be made outside of the prohibited
period or, failing that, fall under the specified exception.
The dissent insists that, during the prohibited period, an appointment
should be viewed in its "narrow sense." In its narrow sense, an
appointment is not a process, but is only an "executive act that the
President unequivocally exercises pursuant to his discretion."45 The
dissent makes acceptance of the appointment inconsequential. The
dissent holds that an appointment is void if the appointment is made
before the ban but the transmittal and acceptance are made after the
ban. However, the dissent holds that an appointment is valid, or
"efficacious," if the appointment and transmittal are made before the
ban even if the acceptance is made after the ban. In short, the dissent
allows an appointment to take effect during the ban, as long as the
President signed and transmitted the appointment before the ban,
even if the appointee never received the appointment paper before
the ban and accepted the appointment only during the ban.
The dissent's view will lead to glaring absurdities. Allowing the
dissent's proposal that an appointment is complete merely upon the
signing of an appointment paper and its transmittal, excluding the
appointee's acceptance from the appointment process, will lead to the
absurdity that, in case of non-acceptance, the position is considered
occupied and nobody else may be appointed to it. Moreover, an
incumbent public official, appointed to another public office by the
President, will automatically be deemed to occupy the new public
office and to have automatically resigned from his first office upon
transmittal of his appointment paper, even if he refuses to accept the
new appointment. This will result in chaos in public service.
Even worse, a President who is unhappy with an incumbent public
official can simply appoint him to another public office, effectively
removing him from his first office without due process. The mere
transmittal of his appointment paper will remove the public official
from office without due process and even without cause, in violation of
the Constitution.
The dissent's proferred excuse (that the appointee is not alluded to in
Section 15, Article VII) for its rejection of "acceptance by the
appointee" as an integral part of the appointment process ignores the
reason for the limitation of the President's power to appoint, which is
.to prevent the outgoing President from continuing to rule the country
indirectly after the end of his term. The 1986 Constitutional
Commission installed a definite cut-off date as an objective and
unbiased marker against which this once-in-every-six-years
prohibition should be measured.
The dissent's assertion that appointment should be viewed in its
narrow sense (and is not a process) only during the prohibited period
is selective and time-based, and ignores well-settled jurisprudence.
For purposes of complying with the time limit imposed by the
appointment ban, the dissent' s position cuts short the appointment
process to the signing of the appointment paper and its transmittal,
excluding the receipt of the appointment paper and acceptance of the
appointment by the appointee.
The President exercises only one kind of appointing power. There is
no need to differentiate the exercise of the President's appointing
power outside, just before, or during the appointment ban. The
Constitution allows the President to exercise the power of
appointment during the period not covered by the appointment ban,
and disallows (subject to an exception) the President from exercising
the power of appointment during the period covered by the
appointment ban. The concurrence of all steps in the appointment
process is admittedly required for appointments outside the
appointment ban. There is no justification whatsoever to remove
acceptance as a requirement in the appointment process for
appointments just before the start of the appointment ban, or during
the appointment ban in appointments falling within the exception. The
existence of the appointment ban makes no difference in the power of
the President to appoint; it is still the same power to appoint. In fact,
considering the purpose of the appointment ban, the concurrence of
all steps in the appointment process must be strictly applied on
appointments made just before or during the appointment ban.
In attempting to extricate itself from the obvious consequences of its
selective application, the dissent glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee to
validly assume his post and discharge the functions of his new office,
and thus make the appointment effective. There can never be an
instance where the appointment of an incumbent will automatically
result in his resignation from his present post and his subsequent
assumption of his new position; or where the President can simply
remove an incumbent from his current office by appointing him to
another one. I stress that acceptance through oath or any positive act
is still indispensable before any assumption of office may
occur.46 (Emphasis added)
The dissent proposes that this Court ignore well-settled jurisprudence
during the appointment ban, but apply the same jurisprudence outside
of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a
process that begins with the selection by the appointing power and
ends with acceptance of the appointment by the appointee, stands. As
early as the 1949 case of Lacson v. Romero, this Court laid down the
rule that acceptance by the appointee is the last act needed to make
an appointment complete. The Court reiterated this rule in the 1989
case of Javier v. Reyes. In the 1996 case of Garces v. Court of
Appeals, this Court emphasized that acceptance by the appointee is
indispensable to complete an appointment. The 1999 case of
Bermudez v. Executive Secretary, cited in the ponencia, affirms this
standing rule in our jurisdiction, to wit:
"The appointment is deemed complete once the last act required of
the appointing authority has been complied with and its acceptance
thereafter by the appointee in order to render it effective."47
The dissent's assertion creates a singular exception to the well-settled
doctrine that appointment is a process that begins with the signing of
the appointment paper, followed by the transmittal and receipt of the
appointment paper, and becomes complete with the acceptance of
the appointment. The dissent makes the singular exception that
during the constitutionally mandated ban on appointments,
acceptance is not necessary to complete the appointment. The
dissent gives no reason why this Court should make such singular
exception, which is contrary to the express provision of the
Constitution prohibiting the President from making appointments
during the ban. The dissent's singular exception will allow the
President, during the ban on appointments, to remove from office
incumbents without cause by simply appointing them to another office
and transmitting the appointment papers the day before the ban
begins, appointments that the incumbents cannot refuse because
their acceptance is not required during the ban. Adoption by this Court
of the dissent's singular exception will certainly wreak havoc on the
civil service.
The following elements should always concur in the making of a valid
(which should be understood as both complete and effective)
appointment: (1) authority to appoint and evidence of the exercise of
the authority; (2) transmittal of the appointment paper and evidence of
the transmittal; (3) a vacant position at the time of appointment; and
(4) receipt of the appointment paper and acceptance of the
appointment by the appointee who possesses all the qualifications
and none of the disqualifications. The concurrence of all these
elements should always apply, regardless of when the appointment is
made, whether outside, just before, or during the appointment ban.
These steps in the appointment process should always concur and
operate as a single process. There is no valid appointment if the
process lacks even one step. And, unlike the dissent's proposal, there
is no need to further distinguish between an effective and an
ineffective appointment when an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint officials is provided
for in the Constitution and laws.48 Discretion is an integral part in the
exercise of the power of appointment.49 Considering that appointment
calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., "the choice of a person to fill an
office constitutes the essence of his appointment," and Mr. Justice
Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." In Pamantasan ng
Lungsod ng Maynila v. Intermediate Appellate Court we held:
The power to appoint is, in essence, discretionary. The appointing
power has the right of choice which he may exercise freely according
to his judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint.
Appointment involves an exercise of discretion of whom to appoint; it
is not a ministerial act of issuing appointment papers to the appointee.
In other words, the choice of the appointee is a fundamental
component of the appointing power.
Hence, when Congress clothes the President with the power to
appoint an officer, it (Congress) cannot at the same time limit the
choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment
necessarily carries the discretion of whom to appoint. Even on the
pretext of prescribing the qualifications of the officer, Congress may
not abuse such power as to divest the appointing authority, directly or
indirectly, of his discretion to pick his own choice. Consequently, when
the qualifications prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular restriction on
the power of appointment.50
Transmittal
It is not enough that the President signs the appointment paper. There
should be evidence that the President intended the appointment
paper to be issued. It could happen that an appointment paper may
be dated and signed by the President months before the appointment
ban, but never left his locked drawer for the entirety of his term.
Release of the appointment paper through the MRO is an unequivocal
act that signifies the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958,
Governing the Organization and Functions of the Executive Office and
General Matters of Procedure Therein. Initially called the Records
Division, the MRO functioned as an administrative unit of the
Executive Office. Memorandum Order No. 1 assigned the following
functions:
a. Receive, record and screen all incoming correspondence,
telegrams, documents and papers, and
(1) Forward those of a personal and unofficial nature to
the President's Private Office; and
(2) Distribute those requiring action within the Office or
requiring staff work prior to presentation to the
President to the appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside
the Office to assure that prompt replies are made and copies
thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal
papers of the President, and keep them in such condition as to
meet the documentary and reference requirements of the
Office.
e. Keep and maintain a filing and records system for acts,
memoranda, orders, circulars, correspondence and other
documents affecting the Office for ready reference and use.
f. Issue certified true copies of documents on file in the
Division m accordance with prevailing standard operating
procedure.
g. Keep a separate record of communications or documents of
confidential nature.
h. Have custody of the Great Seal of the Republic of the
Philippines.
i. Prepare and submit to the approving authority, periodic
disposition schedules of non-current records which have no
historical, legal and/or claim value.
j. With the approval of the Executive Secretary, assist other
offices in the installation or improvement of their records
management system; and
k. Give instructions or deliver lectures and conduct practical
training to in-service trainees from other offices and to
students from educational institutions on records
management.51
The Records Division was elevated to an Office in 1975, with
the addition of the following functions:
1. Maintain and control vital documents and essential
records to support the functions of the OP in its day to
day activities;
2. Monitor the flow of communications' from their time
of receipt up to their dispatch;
3. Service the documentary, information and reference
requirements of top management and action officers of
the OP, and the reference and research needs of other
government agencies and the general public;
4. Ensure the proper storage, maintenance, protection
and preservation of vital and presidential documents,
and the prompt disposal of obsolete and valueless
records;
5. Effect the prompt publication/dissemination of laws,
presidential issuances and classified documents;
6. Provide computerized integrated records
management support services for easy reference and
retrieval of data and information; and
7. To be able to represent the OP and OP officials in
response to Subpoena Duces Tecum and
Testificandum served by courts and other investigating
bodies.52
For purposes of verification of the appointment paper's existence and
authenticity, the appointment paper must bear the security marks (i.e.,
handwritten signature of the President, bar code, etc.) and must be
accompanied by a transmittal letter from the MRO.
The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO,
underscores the purpose of the release of papers through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of
1958 to (1) receive, record, and screen all incoming correspondence,
telegrams, documents, and papers; (2) follow up on correspondence Q: What is the basis for the process you just discussed?
forwarded to entities outside the Office of the President ("OP") to
assure that prompt replies are made and copies thereof furnished the A: The Service Guide of the MRO.
OP; (3) timely dispatch all outgoing documents and correspondence;
(4) have custody of records of the OP, except personal papers of the xxxx
President, and keep them in such condition as to meet the
documentary and reference requirements of the Office; (5) keep and Q: What is the legal basis for the issuance of the MRO Service Guide,
maintain a filing and records system for Acts, Memoranda, Orders, if any?
Circulars, correspondence, and other pertinent documents for ready
reference and use; ( 6) issue certified copies of documents on file as A: The MRO Service Guide was issued pursuant to Memorandum
requested and in accordance with prevailing standard operating Circular No. 35, Series of 2003 and Memorandum Circular No. 133,
procedures; (7) maintain and control vital documents and essential Series of 2007.
records to support the OP in its day-to-day activities; (8) monitor the
flow of communications from the time of receipt up to their dispatch;
xxxx
and (9) other related functions.
Q: Do you exercise any discretion in the release of documents
xxxx
forwarded to the MRO for transmittal to various offices?
Q: As you previously mentioned, the MRO is the custodian of all
A: No. We are mandated to immediately release all documents and
documents emanating from Malacañang pursuant to its mandate
correspondence forwarded to us for transmittal.
under Memorandum Order No. 1, Series of 1958. Is the MRO required
to follow a specific procedure in dispatching outgoing documents?
Q: If a document is forwarded by the OES to the MRO today, when is
it officially released by the MRO to the department or agency
A: Yes.
concerned?
Q: Is this procedure observed for the release of an appointment paper
A: The document is released within the day by the MRO if the
signed by the President? A: Yes. It is observed for the release of the
addressee is within Metro Manila. For example, in the case of the
original copy of the appointment paper signed by the President.
appointment paper of Dindo Venturanza, the OES forwarded to the
MRO on March 12, 2010 his original appointment paper dated
Q: Can you briefly illustrate the procedure for the release of the February 23, 2010 and the transmittal letter dated March 9, 2010
original copy of the appointment paper signed by the President? prepared by the OES. The MRO released his appointment paper on
the same day or on March 12, 2010, and was also received by the
A: After an appointment paper is signed by the President, the Office of DOJ on March 12, 2010 as shown by the delivery receipt.
the Executive Secretary (OES) forwards the appointment paper
bearing the stamp mark, barcode, and hologram of the Office of the Q: What is the effect if a document is released by an office or
President, together with a transmittal letter, to the MRO for official department within Malacañan without going through the MRO?
release. Within the same day, the MRO sends the original copy of the
appointment paper together with the transmittal letter and a delivery
A: If a document does not pass through the MRO contrary to
receipt which contains appropriate spaces for the name of the
established procedure, the MRO cannot issue a certified true copy of
addressee, the date released, and the date received by the
the same because as far as the MRO is concerned, it does not exist in
addressee. Only a photocopy of the appointment is retained for the
our official records, hence, not an official document from the
MRO's official file.
Malacañang. There is no way of verifying the document's existence
and authenticity unless the document is on file with the MRO even if
the person who claims to have in his possession a genuine document
furnished to him personally by the President. As a matter of fact, it is
only the MRO which is authorized to issue certified true copies of
documents emanating from Malacañan being the official custodian
and central repository of said documents. Not even the OES can
issue a certified true copy of documents prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the Malacañang
Palace. All incoming and outgoing documents and correspondence
must pass through the MRO. As the official custodian, the MRO is in
charge of the official release of documents.
Q: What if an appointment paper was faxed by the Office of the
Executive Secretary to the appointee, is that considered an official
release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the
appointment paper to the appointee. That appointment paper is, at
best, only an "advanced copy."
Q: Assuming the MRO has already received the original appointment
paper signed by the President together with the transmittal letter
prepared by the OES, you said that the MRO is bound to transmit
these documents immediately, that is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original
appointment paper has already been forwarded to the MRO, recalls
the appointment and directs the MRO not to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO,
was there any instance when it was directed to recall the appointment
and retrieve the documents already transmitted? A: Yes, but only in a
few instances. Sometimes, when the MRO messenger is already in
transit or while he is already in the agency or office concerned, we get
a call to hold the delivery. Q: You previously outlined the procedure
governing the transmittal of original copies of appointment papers to
the agency or office concerned. Would you know if this procedure was
followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure
has been followed. However, it was unusually disregarded when the
appointments numbering more than 800 were made by then President
Arroyo in March 2010. The MRO did not even know about some of
these appointments and we were surprised when we learned about
them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than
800 persons in the month of March alone. How were you able to
determine this number?
A: My staff counted all the appointments made by then President An-
oyo within the period starting January 2009 until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by
then President Arroyo in the month of March 2010 compared to the
other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the
graphical representation thereof.
Q: If those documents will be shown to you, will you be able to
recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of
presidential appointees per month since January 2009 until June
2010, and a graphical representation thereof. Can you go over these
documents and tell us the relation of these documents to the ones you
previously mentioned?
A: These are [sic] the Certification with the table of statistics I
prepared after we counted the appointments, as well as the graph
thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010, how
many appointment papers and transmittal letters were released
through the MRO?
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which
were not released through the MRO but apparently through the OES,
there were portions on the stamp of the OES which supposedly
indicated the date and time it was actually received by the agency or
office concerned but were curiously left blank, is this regular or
irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt
attached to the transmittal letter is filled out completely because the
dates when the original appointment papers were actually received
are very material. It is a standard operating procedure for the MRO
personnel to ask the person receiving the documents to write his/her
name, his signature, and the date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers
apparently released by the OES are concerned, what is the actual
date when the agency or the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were
actually received because the date and time were deliberately or
inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal
letters or the appointment papers is the actual date when it was
released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the
person who received these documents did not indicate the date and
time when it was received because these details are very important.53
The MRO's exercise of its mandate does not prohibit the President or
the Executive Secretary from giving the appointment paper directly to
the appointee. However, a problem may arise if an appointment paper
is not coursed through the MRO and the appointment paper is lost or
the appointment is questioned. The appointee would then have to
prove that the appointment paper was directly given to him.
Dimaandal's counsel made this manifestation about petitioners'
appointment papers and their transmittal:
Your Honors, we respectfully request for the following markings to be
made:
1. A) The Transmittal Letter pertinent to the appointment of
petitioner DINDO VENTURANZA dated March 9, 2010 as
Exhibit "2-F" for the respondents;
B) The delivery receipt attached in front of the letter
bearing the date March 12, 2010 as Exhibit "2-F-l";
C) The Appointment Paper of DINDO VENTURANZA
dated February 23, 2010 as Exhibit "2-G" for the
respondents;
2. A) The Transmittal Letter pertinent to the appointment of
CHELOY E. VELICARIA-GARAFIL turned over to the MRO on
May 13, 2010 consisting of seven (7) pages as Exhibits "2-H,"
"2-H-l," "2-H-2," "2-H-3," "2-H-4," "2-H-5," and "2-H-6"
respectively for the respondents;
i. The portion with the name "CHELOY E.
VELICARIAGARAFIL" as "State Solicitor II,
Office of the Solicitor General" located on the
first page of the letter as Exhibit "2-H-7;"
ii. The portion rubber stamped by the Office of
the Executive Secretary located at the back of
 the last page of the -letter showing receipt by
the DOJ with blank spaces for the date and time
when it was actually received as Exhibit "2-H-
8;"
B) The Appointment Paper of CHELOY E. VELICARIA-
GARAFIL dated March 5, 2010 as Exhibit "2-I" for the
respondents;
xxxx
4. A) The Transmittal Letter pertinent to the appointment of
EDDIE U. TAMONDONG dated 8 March 2010 but turned over
to the MRO only on May 6, 2010 consisting of two (2) pages
as Exhibits "2-L" and "2-L-l" respectively for the respondents;
(a) The portion with the name "EDDIE U.
TAMONDONG" as "Member, representing the Private
Sector, Board of Directors" as Exhibit "2-L-2";
(b) The portion rubber stamped by the Office of the
Executive Secretary located at the back of the last
page of the letter showing receipt by Ma. Carissa O.
Coscuella with blank spaces for the date and time
when it was actually received as Exhibit "2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the
appointments of x x x FRANCISCA BESTOYONG-
ROSQUITA dated March 8, 2010 but turned over to the
MRO on May 13, 2010 as Exhibit "2-T" for the
respondents;
xxxx
(c) The portion with the name "FRANCISCA
BESTOYONGROSQUIT A" as "Commissioner,
Representing Region I and the Cordilleras" as Exhibit
"2-T-3·"
(d) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing
receipt by Masli A. Quilaman of NCIP-QC on March 15,
2010 as Exhibit "2-T-4;"
xxxx
D) The Appointment Paper of FRANCISCA
BESTOYONGROSQUIT A dated March 5, 2010 as Exhibit "2-
W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of
IRMA A. VILLANUEVA as Administrator for Visayas, Board of
Administrators, Cooperative Development Authority,
Department of Finance dated March 8, 2010 as Exhibit "2-X"
for the respondents;
(a) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing
receipt by DOF with blank spaces for the date and time
when it was actually received as Exhibit "2-X-1 ;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated
March 3, 2010 as Exhibit "2-Y" for the respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File
Maintenance and Retrieval Division of the MRO, supports
Dimaandal's counsel's manifestation that the transmittal of petitioners'
appointment papers is questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as
State Solicitor II of the Office of the Solicitor General, was her
appointment paper released through the MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 13, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as
member of the Board of Directors of Subic Bay Metropolitan Authority,
was her [sic] appointment paper released through the MRO?
A: No. His appointment paper dated March 1, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 6, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed
as Commissioner of the National Commission on Indigenous Peoples,
representing Region 1 and the Cordilleras, was her appointment
paper released thru the MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 13, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary and received on March 15, 2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as
Administrator for Visayas of the Cooperative Development Authority,
was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 4, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MR0.55
The possession of the original appointment paper is not indispensable
to authorize an appointee to assume office. If it were indispensable,
then a loss of the original appointment paper, which could be brought
about by negligence, accident, fraud, fire or theft, corresponds to a
loss of the office.56 However, in case of loss of the original
appointment paper, the appointment must be evidenced by a certified
true copy issued by the proper office, in this case the MRO. Vacant
Position
An appointment can be made only to a vacant office. An appointment
cannot be made to an occupied office. The incumbent must first be
legally removed, or his appointment validly terminated, before one
could be validly installed to succeed him.57
To illustrate: in Lacson v. Romero, 58 Antonio Lacson (Lacson)
occupied the post of provincial fiscal of Negros Oriental. He was later
nominated and confirmed as provincial fiscal of Tarlac. The President
nominated and the Commission on Appointments confirmed Honorio
Romero (Romero) as provincial fiscal of Negros Oriental as Lacson's
replacement. Romero took his oath of office, but Lacson neither
accepted the appointment nor assumed office as provincial fiscal of
Tarlac. This Court ruled that Lacson remained as provincial fiscal of
Negros Oriental, having declined the appointment as provincial fiscal
of Tarlac. There was no vacancy to which Romero could be legally
appointed; hence, Romero's appointment as provincial fiscal ofNegros
Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to
be complete involves several steps. First, comes the nomination by
the President. Then to make that nomination valid and permanent, the
Commission on Appointments of the Legislature has to confirm said
nomination. The last step is the acceptance thereof by the appointee
by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the
Executive and Legislative departments of the Government. But the
last necessary step to make the appointment complete and effective
rests solely with the appointee himself. He may or he may not accept
the appointment or nomination. As held in the case of Borromeo vs.
Mariano, 41 Phil. 327, "there is no power in this country which can
compel a man to accept an office." Consequently, since Lacson has
declined to accept his appointment as provincial fiscal of Tarlac and
no one can compel him to do so, then he continues as provincial fiscal
of Negros Oriental and no vacancy in said office was created, unless
Lacson had been lawfully removed as such fiscal of Negros Oriental.59
Paragraph (b ), Section 1 of EO 2 considered as midnight
appointments those appointments to offices that will only be vacant on
or after 11 March 2010 even though the appointments are made prior
to 11 March 2010. EO 2 remained faithful to the intent of Section 15,
Article VII of the 1987 Constitution: the outgoing President is
prevented from continuing to rule the country indirectly after the end of
his term.
Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an appointment. Assuming
office and taking the oath amount to acceptance of the
appointment.60 An oath of office is a qualifying requirement for a public
office, a prerequisite to the full investiture of the office.61
62
Javier v. Reyes  is instructive in showing how acceptance is
indispensable to complete an appointment. On 7 November 1967,
petitioner Isidro M. Javier (Javier) was appointed by then Mayor
Victorino B. Aldaba as the Chief of Police of Malolos, Bulacan. The
Municipal Council confirmed and approved Javier's appointment on
the same date. Javier took his oath of office on 8 November 1967,
and subsequently discharged the rights, prerogatives, and duties of
the office. On 3 January 1968, while the approval of Javier's
appointment was pending with the CSC, respondent Purificacion C.
Reyes (Reyes), as the new mayor of Malolos, sent to the . CSC a
letter to recall Javier's appointment. Reyes also designated Police Lt.
Romualdo F. Clemente as Officer-in-Charge of the police department.
The CSC approved Javier's appointment as permanent on 2 May
1968, and even directed Reyes to reinstate Javier. Reyes, on the
other hand, pointed to the appointment of Bayani Bernardo as Chief of
Police of Malolos, Bulacan on 4 September 1967. This Court ruled
that Javier's appointment prevailed over that of Bernardo. It cannot be
said that Bernardo accepted his appointment because he never
assumed office or took his oath.
Excluding the act of acceptance from the appointment process leads
us to the very evil which we seek to avoid (i.e., antedating of
appointments). Excluding the act of acceptance will only provide more
occasions to honor the Constitutional provision in the breach. The
inclusion of acceptance by the appointee as an integral part of the
entire appointment process prevents the abuse of the Presidential
power to appoint. It is relatively easy to antedate appointment papers
and make it appear that they were issued prior to the appointment
ban, but it is more difficult to simulate the entire appointment process
up until acceptance by the appointee.
Petitioners have failed to show compliance with all four elements of a
valid appointment. They cannot prove with certainty that their
appointment papers were transmitted before the appointment ban
took effect. On the other hand, petitioners admit that they took their
oaths of office during the appointment ban.
Petitioners have failed to raise any valid ground for the Court to
declare EO 2, or any part of it, unconstitutional. Consequently, EO 2
remains valid and constitutional.
WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and
212030 are DENIED, and the petition in G.R. No. 209138 is
DISMISSED. The appointments of petitioners Atty. Cheloy E.
Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza (G.R.
No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No.
209138), and Atty. Eddie U. Tamondong (G.R. No. 212030) are
declared VOID. We DECLARE that Executive Order No. 2 dated 30
July 2010 is VALID and CONSTITUTIONAL.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
12. Power to Appoint is Discretionary
[G.R. NO. 158737 : August 31, 2004]
CIVIL SERVICE COMMISSION, Petitioner, v. SATURNINO
DE LA CRUZ, Respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 45 of the
Revised Rules of Court, seeking to review and set aside the
May 14, 2003 decision1 and June 17, 2003 resolution2 of the
Court of Appeals in CA-G.R. SP No. 54088, entitled Saturnino
de la Cruz v. Civil Service Commission. In that decision, the
appellate court set aside CSC Resolution Nos. 98-2970 and
99-1451, consequently approving Saturnino de la Cruz'
appointment as Chief of the Aviation Safety Regulation
Office.
The pertinent facts,3 as narrated by the Office of the Solicitor
General, follow.
Respondent Saturnino de la Cruz is an employee of the Air
Transportation Office, DOTC, presently holding the position
of Chief Aviation Safety Regulation Officer of the Aviation
Safety Division.
Respondent was promotionally appointed to the said position
on November 28, 1994, duly attested by the Civil Service
Commission (CSC). But prior thereto, he was a Check Pilot II
in the Air Transportation Office (ATO).
In a letter dated February 9, 1995, Annabella A. Calamba of
the Aviation Security Division of the ATO formally filed with
the Department of Transportation and Communication
(DOTC) her protest against the promotional appointment of
respondent as Chief Aviation Safety Regulation Officer,
claiming among others that respondent did not meet the
four-year supervisory requirement for said position.
On July 20, 1995, then DOTC Secretary Jesus B. Garcia
rendered a decision finding the protest without merit.
Apparently dissatisfied, Calamba appealed the decision of the
DOTC Secretary to the CSC-NCR.
Under date of October 17, 1995, Director Nelson Acebedo of
CSC-NCR requested ATO Executive Director Manuel Gilo to
comment on the appeal and to submit to the CSC-NCR the
documents pertinent thereto.
Since the CSC-NCR received no action on said request for
comment, the CSC-NCR again wrote Director Gilo regarding
the matter on May 5, 1997. But to no avail.
On October 14, 1997, for the last time, the CSC-NCR
reiterated to Director Gilo its request for comment.
On November 18, 1997, the CSC-NCR rendered its decision
upholding the protest of Calamba and recalling the approval
of respondent's appointment as Chief Aviation Safety
Regulation Officer. Said the CSC-NCR:
"After an initial evaluation of the protest, we find that the
only issue to be resolved is whether or not the protestee
meets the minimum experience requirements as of the date
of the protestee's appointment to the contested position. The
contested position requires four years of work experience in
position/s involving management per Qualification Standards
Manual prescribed by MC No. 46, s. 1993 and/or four years
of experience in planning, organizing, directing, coordinating
and supervising the enforcement of air safety laws, rules and
regulations pertaining to licensing, rating and checking of all
airmen and mechanics and regulation of the activities of
flying schools per ATO Qualification Standards xxx.
xxx xxx xxx
Taking into account his previous positions, Mr. dela Cruz
could not have exercised managerial or supervisory functions
for the required number of years. x x x. Moreover, vis - Ã
-vis the experience requirements of the approved ATO
Qualification Standards, Mr. dela Cruz' work experience prior
to his appointment to the contested position did not concur
therewith.
We are of the view therefore, that experience-wise, Mr. dela
Cruz did not meet the requirements of the contested position
as of the date of his appointment thereto.
xxx xxx xxx."
Under date of December 11, 1997, ATO Director Gilo wrote
the CSC-NCR asking for the suspension of the order recalling
respondent's appointment, citing several reasons in support
thereof.
Subsequently, a Manifestation with Motion to Admit
Addendum dated December 22, 1997 was filed by Director
Gilo with the CSC-NCR. Director Gilo argued that Calamba
had no legal personality to file a protest because she is not a
qualified next-in-rank and that the protest was filed out of
time. He likewise asserted that respondent had fully met the
qualifications required of the position.
On January 5, 1998, CSC-NCR Director Acebedo ruled that
there is no cogent reason to disturb earlier rulings on the
matter. He also denied ATO Director Gilo's request, for lack
of merit.
Strangely, in a letter dated January 13, 1998, CSC-NCR
Director Acebedo granted Director Gilo's request and
affirmed the approval of respondent's appointment as Chief
Aviation Safety Regulation Officer. He said:
"xxx xxx xxx. crvll
We reviewed again the documents including the Office
Orders designating protestant dela Cruz to supervisory
position which were obviously issued during the latter part of
1993. A liberal consideration thereof would come up with a
little over one year of supervisory and managerial
experience. Certainly, he was short of the required number
of years of work experience for the contested position as of
the date of the issue of his appointment. Nevertheless,
considering that Mr. dela Cruz has already in his favor at
least four years of continuous supervisory/managerial
experience from his designation as Acting Chief of the
Aviation Safety Regulation Division, supervened by his
permanent appointment thereto as Chief thereof in
November 28, 1994, up to present, he has substantially
satisfied the four years experience required for appointment
to the contested position.
xxx xxx xxx."
In a letter dated January 26, 1998, Calamba requested the
CSC to implement the January 5, 1998 ruling of the CSC-
NCR.
When asked by the CSC to clarify the conflicting rulings,
CSC-NCR Director Acebedo explained that the January 5,
1998 ruling is unofficial and inexistent.
The CSC treated Calamba's request as an appeal. On
November 13, 1998, the CSC rendered its Resolution No. 98-
2970, the decretal portion of which reads:
"WHEREFORE, the appeal of Annabella A. Calamba is hereby
granted. The appointment of Saturnino De la Cruz as Chief
Aviation Regulation Officer is disapproved. De la Cruz is
hereby reverted to his former position.
xxx xxx xxx."
Acting on the request for reconsideration filed by respondent,
the CSC rendered its Resolution No. 99-1451 on July 6,
1999, the dispositive portion of which reads:
"WHEREFORE, the instant motion for reconsideration of
Saturnino dela Cruz is hereby denied. Accordingly, CSC
Resolution No. 98-2970 dated November 13, 1998 stands."
On August 11, 1999, respondent filed a Petition for Review
with the Court of Appeals, docketed as CA-G.R. SP No.
54088, seeking to nullify CSC Resolution Nos. 98-2970 and
99-1451.
In a decision4 dated March 14, 2003, the Court of Appeals
granted the petition by setting aside CSC Resolution Nos. 98-
2970 and 99-1451 and approving respondent's appointment
as Chief of the Aviation Safety Regulation Office.
Petitioner's motion for reconsideration was subsequently
denied in a resolution issued on June 17, 2003.
Hence, the instant Petition for Review .
Petitioner contends that the appellate court erred in
approving respondent's appointment as Chief Aviation Safety
Regulation Officer despite his failure to meet the minimum
four-year managerial and supervisory qualification for the
position. It further contends that respondent's completion of
the required experience  during the pendency of the present
case cannot be counted in his favor because compliance with
the prescribed mandatory requirements should be as of the
date of issuance of the appointment and not the date of
approval by the CSC or the resolution of the protest against
the appointment.
The petition lacks merit.
Contrary to petitioner's contention, respondent has
sufficiently complied with the required experience standards.
First, upon the issuance of respondent's appointment on
November 28, 1994, the qualification standards of the DOTC
for the position of Chief Aviation Safety Regulation Officer
were as follows:
EDUCATION: Bachelor's Degree related to Aviation
EXPERIENCE: 4 years of experience in planning, organizing, directing, coo
supervising the enforcement of air safety laws, rules, and regulatio
licensing, rating and checking of all airmen and mechanics and th
the activities of flying schools.
License required: Airline Transport Rating / Flight Operations O
Maintenance Engineer (A&P) License / Flight Engineer License
TRAINING: In-service training in management; specialized course in aircraft m
carrier operations/ flight dispatching/ aircraft accident investigat
qualification course / flight training (local & abroad)
ELIGIBILITY: Relevant RA 1080 Career Service Prof. 1st Grade
Relevant Eligibility for Second Level Position5
As noted by the CSC-NCR,6 the contested position required
four years of work experience in managerial position(s) per
the Qualification Standards Manual prescribed by MC No. 46,
s. 1993 and/or four years of experience in planning,
organizing, directing, coordinating and supervising the
enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and
mechanics and regulation of the activities of flying schools
per the above-stated ATO-DOTC Qualification Standards.
Petitioner's insistence that respondent failed to meet the
four-year managerial and supervisory experience
requirement is misplaced. It is a well-settled rule in statutory
construction that the use of the term "and/or" means that
the word "and" and the word "or" are to be used
interchangeably.7 The word "or" is a disjunctive term
signifying dissociation and independence of one thing from
another.8 Thus, the use of the disjunctive term "or" in this
controversy connotes that either the standard in the first
clause or that in the second clause may be applied in
determining whether a prospective applicant for the position
under question may qualify.
Respondent would indeed lack the required years of work
experience to qualify for the contested position if the
managerial standards in the first clause above were to be
strictly followed. At the time of his permanent appointment
on November 28, 1994 as Chief Aviation Safety Regulation
Officer, respondent had a little over one year of managerial
experience from his designation as Acting Chief of the
Aviation Safety Division during the latter part of 1993.
However, the work already rendered by respondent in the
ATO at the time of his appointment was well within the
supervisory standard in the second clause. Planning,
organizing, directing, coordinating and supervising the
enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and
mechanics and regulation of the activities of flying schools
were part of the work performed by respondent for more
than 13 years prior to his appointment.
Before respondent was appointed to the contested position,
he had held several other positions in the ATO, namely:
March 6, 1981 to July 15, 1981 Supply Checker
July 16, 1981 to February 5, 1983 Junior Aeronautical Engineer
February 6, 1983 to February 29, 1984 Air Carrier Safety Inspector
March 1, 1984 to February 28, 1987 Check Pilot I
March 1, 1987 to November 27, 1994 Check Pilot II
November 28, 1994 to date Chief Aviation Safety Regulation Officer
These positions, spanning more than 13 years, in four of the
five sections of the Aviation Safety Division of the ATO
definitely met the minimum supervisory experience required
of respondent for the position.
In Rapisora v. Civil Service Commission,10 this Court held
that the rule that appointees must possess the prescribed
mandatory requirements cannot be so strictly interpreted as
to curtail an agency's discretionary power to appoint, as long
as the appointee possesses other qualifications required by
law. The appellate court was therefore correct in setting
aside the assailed CSC resolutions and considering the
respondent's total work experience as sufficient to meet the
supervisory standards under the second clause, thereby
finding respondent qualified for appointment to the contested
position.
Second, respondent's promotional appointment was issued in
accordance with petitioner's selection process. Respondent
passed the rigid screening of the ATO Personnel
Selection/Promotion Board as well as the oral and written
examinations of the DOTC Selection Board.
DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:
1. Capt. dela Cruz has been with the Air Transportation
Office for more than 13 years already and during such
period, he faithfully and efficiently (served in) four of the five
sections of the Aviation Safety Division of which the position
under consideration is the head, thereby gaining more varied
experience and working knowledge of the most important
and sensitive functions of the Division over other applicants;
2. The recommendee always performs his assigned tasks
promptly with dedication, integrity, high sense of
responsibility and professionalism which he had
demonstrated when he established and developed the Airport
Crash Rescue Organization (ACRO) procedure to various
national airports of the country, and when he organized the
Air Transportation Office (ATO) Operations Center which is
now on a 24-hour operation and serving as the nerve center
of this Office;
3. He is a dedicated public servant and is always willing to
respond to call of duty even beyond office hours like when he
is flying the ATO's aircraft for navigation aide check during
holidays and weekends, aside from conducting checkride to
airmen prior to issuance of the pilot license;
4. Capt. dela Cruz is an outstanding team worker as well as a
leader and promotes enthusiasm among co-workers. He
handles all areas of job with minimal supervision and
accomplishes objectives efficiently. He accepts stress
situations and performs extremely well.11
Because of respondent's excellent credentials, DOTC
Assistant Secretary for Administrative and Legal Affairs
Wilfredo M. Trinidad, chair of the Personnel Selection Board,
strongly recommended his promotional appointment to the
contested position.
Third, respondent's multifarious experiences and
trainings12 in air transportation were taken into account when
he was chosen for the subject position. Respondent not only
showed a continuing interest to improve his expertise in the
field of air transportation, he also acquired an Airline
Transport Pilot's License in 1998.13 As a privileged holder of
such license, respondent exercised administrative supervision
and control over pilots, cabin and crew members to ensure
compliance with air safety laws, rules and regulations.
In addition, respondent's dedication to the service was
demonstrated by his conceptualization and establishment of
the Airport Crash Rescue Organization (ACRO) procedure in
various national airports in the country to ensure the security
of both airport personnel and passengers. Respondent also
organized the Air Transportation Office Operations Center
which now provides air service assistance on a 24-hour
basis.
Because of respondent's commendable performance, he was
designated Chief of the Air Transportation Office Operations
Center in 1993 per Office Order No. 178-93,14 in addition to
his duties as Check Pilot II. He was also designated Acting
Chief, Aviation Safety Division, of the ATO per Office Order
No. 211-93.15
In Teologo v. Civil Service Commission,16 the Supreme Court
ruled:
"Promotions in the Civil Service should always be made on
the basis of qualifications, including occupational
competence, moral character, devotion to duty, and, not
least important, loyalty to the service. The last trait should
always be given appropriate weight, to reward the civil
servant who has chosen to make his employment in the
Government a lifetime career in which he can expect
advancement through the years for work well done. Political
patronage should not be necessary. His record alone should
be sufficient assurance that when a higher position becomes
vacant, he shall be seriously considered for the promotion
and, if warranted, preferred to less devoted aspirants."
As stated by ATO Executive Director Manuel Gilo in his letter
to CSC-NCR Director Nelson Acebedo, "a proven excellent
performance of a person is better than just experience by
occupying a position but lacks dedication to duty, strong
leadership and technical know-how."17
It is elementary in the law of public officers that the power to
appoint is in essence discretionary on the part of the proper
authority. In Salles v. Francisco, et al.,18 we had occasion to
rule that, in the appointment or promotion of employees, the
appointing authority considers not only their civil service
eligibilities but also their performance, education, work
experience, trainings and seminars attended, agency
examinations and seniority. Consequently, the appointing
authority has the right of choice which he may exercise
freely according to his best judgment, deciding for himself
who is best qualified among those who have the necessary
qualifications and eligibilities. The final choice of the
appointing authority should be respected and left
undisturbed. Judges should not substitute their judgment for
that of the appointing authority.
In the appointment of division chiefs, as in this case, the
power to appoint rests on the head of the department.
Sufficient if not plenary discretion should be granted to those
entrusted with the responsibility of administering the offices
concerned. They are in a position to determine who can best
fulfill the functions of the office vacated.19 Not only is the
appointing authority the officer primarily responsible for the
administration of the office, he is also in the best position to
determine who among the prospective appointees can
efficiently discharge the functions of the position.20
Respondent was the uncontested choice of the appointing
authority. Then DOTC Secretary Jesus B. Garcia dismissed
the protest against respondent's appointment. ATO Executive
Director Gilo also noted respondent's full compliance with the
qualifications for the position. CSC-NCR Director Acebedo,
who previously recalled respondent's appointment, later
affirmed it after a re-evaluation of the case and declared his
previous ruling unofficial and inexistent.
Clearly then, there is no reason to disapprove the
appointment of respondent as Chief of the Aviation Safety
Regulation Office considering that he is fully qualified and
evidently the choice of the appointing authority. Between the
Commission and the appointing authority, we sustain the
latter.21 "Every particular job in an office calls for both formal
and informal qualifications. Formal qualifications such as age,
number of academic units in a certain course, seminars
attended, etc., may be valuable but so are such intangibles
as resourcefulness, team spirit, courtesy, initiative, loyalty,
ambition, prospects for the future and best interest of the
service. Given the demands of a certain job, who can do it
best should be left to the head of the office concerned
provided the legal requirements for the office are satisfied."22
We, however, agree with petitioner that the reckoning point
in determining the qualifications of an appointee is the date
of issuance of the appointment and not the date of its
approval by the CSC or the date of resolution of the protest
against it. We need not rule on petitioner's assertion that
respondent's subsequent compliance with the experience
standards during the pendency of the case should not be
counted in his favor since respondent was anyway qualified
for the position at the time of his appointment.
But even assuming for the sake of argument that respondent
failed to meet the experience requirement to qualify for the
contested position, we are still inclined to uphold the
appellate court's approval of respondent's appointment.
Petitioner itself has, on several occasions, allowed the
appointment of personnel who were initially lacking in
experience but subsequently obtained the same.
In Civil Service Commission Resolution No. 97-0191 dated
January 9, 1997, it ruled thus:
"A careful evaluation of the qualifications of Josue reveals
that he meets the education, training and eligibility
requirements of the position. Considering that Josue has
already in his favor three (3) years and eight (8) months
experience as Senior Inspector up to the present, he has
substantially satisfied the four (4) years experience required
for the appointment as Chief Inspector."
Following petitioner's line of reasoning, respondent is
deemed to have satisfactorily complied with the experience
requirement for the contested position when he was
designated Chief of the ATO Operations Center and Acting
Chief of the ATO Aviation Safety Division. Having held said
positions from 1993 to the present, respondent may be
considered to have acquired the necessary experience for the
position.
WHEREFORE, the instant petition is hereby DENIED. The
decision of the Court of Appeals setting aside CSC Resolution
No. 98-2970 and CSC Resolution No. 99-1451 is AFFIRMED.
The appointment of Saturnino de la Cruz as Chief Aviation
Safety Regulation Officer is APPROVED.
SO ORDERED.
13. Necessity of Written Appointment
G.R. No. 203655, September 07, 2015
SM LAND, INC., Petitioner, v. BASES CONVERSION AND
DEVELOPMENT AUTHORITY AND ARNEL PACIANO D.
CASANOVA, ESQ., IN HIS OFFICIAL CAPACITY AS
PRESIDENT AND CEO OF BCDA, Respondents.
RESOLUTION
VELASCO JR., J.:
Once again, respondent-movants Bases Conversion
Development Authority (BCDA) and Arnel Paciano D.
Casanova, Esq. (Casanova) urge this Court to reconsider its
August 13, 2014 Decision1 in the case at bar. In their Motion
for Leave to file Second Motion for Reconsideration and to
Admit the Attached Second Motion for Reconsideration (With
Motion for the Court en banc to Take Cognizance of this Case
and/to Set the Case for Oral Argument Before the Court en
banc),2 respondent-movants remain adamant in claiming
that the assailed rulings of the Court would cause
unwarranted and irremediable injury to the government,
specifically to its major beneficiaries, the Department of
National Defense (DND) and the Armed Forces of the
Philippines (AFP).3
The motion fails to persuade.
The instant recourse partakes the nature of a second motion
for reconsideration, a prohibited pleading under Section 2,
Rule 56,4 in relation to Sec. 2, Rule 52 of the Rules of Court.
The rule categorically states: "no second motion for
reconsideration of a judgment or final resolution by the same
party shall be entertained6." The rationale behind the rule is
explained in Manila Electric Company v. Barlis, thusly:
The propriety or acceptability of such a second motion for
reconsideration is not contingent upon the averment of
"new" grounds to assail the judgment, i.e.. grounds other
than those theretofore presented and rejected. Otherwise,
attainment of finality of a judgment might be staved off
indefinitely, depending on the party's ingeniousness or
cleverness in conceiving and formulating "additional flaws" or
"newly discovered errors'" therein, or thinking up some
injury or prejudice to the rights of the movant for
reconsideration. "Piece-meal1" impugnation of a judgment by
successive motions for reconsideration is anathema, being
precluded by the salutary axiom that a party seeking the
setting aside of a judgment, act or proceeding must set out
in his motion all the grounds therefor, and those not so
included are deemed waived and cease to be available for
subsequent motions.
For all litigation must come to an end at some point, in
accordance with established rules of procedure and
jurisprudence. As a matter of practice and policy, courts
must dispose of every case as promptly as possible; and in
fulfillment of their role in the administration of justice, they
should brook no delay in the termination of cases by
stratagems or maneuverings of parties or their lawyers...5
Indeed, all cases are to eventually reach a binding conclusion
and must not remain indefinitely afloat in limbo. Otherwise,
the exercise of judicial power would be for naught if court
decisions can effectively be thwarted at every turn by
dilatory tactics that prevent the said rulings from attaining
finality. Hence, the Court has taken a conservative stance
when entertaining second motions for reconsideration,
allowing only those grounded on extraordinarily persuasive
reasons and, even then, only upon express leave first
obtained.6 As proscribed under Sec. 3, Rule 15 of the mustered for the second motion for
Internal Rules of the Supreme Court: reconsideration to be granted.

SEC. 3. Second motion for reconsideration. - The Court

shall not entertain a second motion for Unfortunately for respondent-movants, the foregoing
reconsideration, and any exception to this rule can only requirements do not obtain in the case at bench. To begin
be granted in the higher interest of justice by the Court with, there are no extraordinarily persuasive reasons "in the
en banc upon a vote of at least two-thirds of its actual higher interest of justice " on which the instant second
membership. There is reconsideration "in the higher interest motion for reconsideration is anchored on. The enumerated
of justice" when the assailed decision is not only legally grounds for the second motion for reconsideration say as
erroneous, but is likewise patently unjust and potentially much:
capable of causing unwarranted and irremediable injury or
damage to the parties. A second motion for reconsideration GROUNDS8
can only be entertained before the ruling sought to be
considered becomes final by operation of law or by the I
Court's declaration.
THE AGREEMENT BETWEEN SMLI AND BCDA WAS NEVER
In the Division, a vote of three Members shall be PERFECTED TO COMPEL BCDA TO COMPLETE THE
required to elevate a second motion for COMPETITIVE CHALLENGE AS THERE WAS NO MEETING OF
reconsideration to the Court En Banc.7 THE MINDS.
(emphasis added)ChanRoblesVirtualawlibrary
II
Succinctly put, the concurrence of the following elements are
THE GOVERNMENT RESERVATION TO CANCEL THE
required for a second motion for reconsideration to be
COMPETITIVE CHALLENGE IS A POLICY DECISION AND
entertained:chanRoblesvirtualLawlibrary
REMAINS ELECTIVE IN THE ENTIRE PROCEEDINGS AND
BINDING TO ALL PRIVATE SECTOR ENTITIES INCLUDING
1. The motion should satisfactorily explain why
SMLI.
granting the same would be in the higher
interest of justice;cralawlawlibrary
III
2. The motion must be made before the ruling
sought to be reconsidered attains
THE DECISION TO TERMINATE THE COMPETITIVE
finality;cralawlawlibrary
CHALLENGE IS A POLICY AND ECONOMIC DECISION.
3. If the ruling sought to be reconsidered was
MANDAMUS WILL THEREFORE NOT LIE.
rendered by the Court through one of its
Divisions, at least three (3) members of the said IV
Division should vote to elevate the case to the
Court En Banc; and ESTOPPEL CANNOT OPERATE TO PREJUDICE THE
4. The favorable vote of at least two-thirds of the GOVERNMENT.
Court En Banc's actual membership must be
V Guidelines), the BCDA is duty-bound to proceed with and
THE PERCEIVED GOVERNMENT LOSSES IS NOT IMAGINED
BUT REAL.
Based on the records, the second motion for reconsideration
is a mere rehash, if not a reiteration, of respondent-movants'
previous arguments and submissions, which have amply
been addressed by the Court in its August 13, 2014 Decision,
and effectively affirmed at length in its March 18, 2015
Resolution.9
To recapitulate, there exists between SMLI and BCDA a
perfected agreement, embodied in the Certification of
Successful Negotiations, upon which certain rights and
obligations spring forth, including the commencement of
activities for the solicitation for comparative proposals.10 As
evinced in the Certification of Successful Negotiation:
NOW, THEREFORE, for and in consideration of the
foregoing, BCDA and SMLI have, after successful
negotiations pursuant to Stage II of Annex C x x x. reached
an agreement on the purpose, terms and conditions on the
JV development of the subject property, which shall become
the terms for the Competitive Challenge pursuant to Annex C
of the Guidelines, x x x.11
x x x x
BCDA and SMLI have agreed to subject SMLI's Original
Proposal to Competitive Challenge pursuant to Annex C -
Detailed Guidelines for Competitive Challenge Procedure for
Public-Private Joint Ventures of the NEDA .TV guidelines,
which competitive challenge process shall be immediately
implemented following the Terms of Reference (TOR)
Volumes 1 and 2.12 (emphasis added)
Under the agreement and the National Economic
Development Authority Joint Venture Guidelines (NEDA JV
complete the competitive challenge after the detailed
negotiations proved successful. Thus, the Court found that
BCDA gravely abused its discretion for having acted
arbitrarily and contrary to its contractual commitment to
SMLI, to the damage and prejudice of the latter, when it
cancelled the competitive challenge prior to its completion.13
Respondent-movants' reliance on the Terms of Reference
(TOR) provision on Qualifications and Waivers14 to cancel the
Swiss Challenge is misplaced for the provision, as couched,
focuses only on the eligibility requirements for Private Sector
Entities (PSEs) who wish to challenge SMLI's proposal, and
not to the Swiss Challenge in its entirety.15 To rule otherwise
- that the TOR allows the BCDA to cancel the competitive
challenge at any time - would contravene the NEDA JV
Guidelines, which has the force and effect of law.16
Respondent-movants cannot also find solace in the dictum
that the State is never be barred by estoppel by the
perceived mistakes or errors of its officials or agents. 17 As
jurisprudence elucidates, the doctrine is subject to
exceptions, viz:
Estoppels against the public are little favored. They should
not be invoked except in a rare and unusual circumstances,
and may not be invoked where they would operate to defeat
the effective operation of a policy adopted to protect the
public. They must be applied with circumspection and should
be applied only in those special cases where the interests of
justice clearly require it. Nevertheless, the government must
not be allowed to deal dishonorably or capriciously with its
citizens, and must not play an ignoble part or do a shabby
thing; and subject to limitations x x x, the doctrine of
equitable estoppel may be invoked against public authorities
as well as against private individuals.18
Here, despite BCDA's repeated assurances that it would
respect SMLFs rights as an original proponent, and after
putting the latter to considerable trouble and expense, BCDA
went back on its word and instead ultimately cancelled its
agreement with SMLI.19 BCDA's capriciousness became all
the more evident in its conflicting statements as regards
whether or not SMLI's proposal would be advantageous to
the government.20 The alleged dubiousness of the proceeding
that led to the perfection of the agreement cannot also be
invoked as a ground to cancel the contract for to rule that
irregularities marred the actions of BCDA's former board and
officers, as respondent-movant would have us to believe,
would be tantamount to prematurely exposing them, who are
non-parties to this case, to potential administrative liability
without due process of law.21
Respondent-movants would then asseverate that to proceed
with the competitive challenge starting at the floor price of
P38,500.00 per square meter is patently unjust and grossly
disadvantageous to the government since the property in
issue is allegedly appraised at P78,000.00 per square
meter.22 However, this alleged adverse economic impact on
the government, in finding for SMLI, remains speculative. To
clarify, Our ruling did not award the project in petitioner's
favor but merely ordered that SMLI's proposal be subjected
to a competitive challenge. And lest it be misunderstood, the
perceived low floor price for the project, based on SMLI's
proposal, remains just that - a floor price. Without first
subjecting SMLI's proposal to a competitive challenge, no bid
can yet be obtained from private sector entities and,
corollarily, no determination can be made at present as to
whether or not the final bid price for the project is indeed
below the property's fair market value.23
Overall, the foregoing goes to show that the BCDA failed to
establish a justifiable reason for its refusal to proceed with
the competitive challenge.24 We are left to believe that the
cancellation of the competitive challenge, in violation not
only of the agreement between the parties but also of the
NEDA JV Guidelines, was only due to BCDA's whims and
caprices, and is correctible by the extraordinary writ
of certiorari .
With the foregoing disquisitions, respondent-movants'
second motion for reconsideration, as its first, is totally
bereft of merit. There exists no argument "in the higher
interest of justice" that would convincingly compel this Court
to even admit the prohibited pleading. It also then goes
without saying that this Division does not find cogent reason
to elevate the matter to the Court en banc.
Furthermore, it is well to note that the Court's ruling in this
case has already attained finality and an Entry of
Judgment25 has correspondingly been issued. The Court,
therefore, no longer has jurisdiction to modify the Decision
granting SMLI's petition for its finality and executoriness
consequently rendered it immutable and unalterable.26 As
elucidated in Mocorro, Jr. v. Ramirez:
This quality of immutability precludes the modification of a
final judgment, even if the modification is meant to correct
erroneous conclusions of fact and law. And this postulate
holds true whether the modification is made by the court that
rendered it or by the highest court in the land. The orderly
administration of justice requires that, at the risk of
occasional errors, the judgments/resolutions of a court must
reach a point of finality set by the law. The noble purpose is
to write finis to dispute once and for all. This is a
fundamental principle in our justice system, without which
there would be no end to litigations. Utmost respect and
adherence to this principle must always be maintained by
those who exercise the power of adjudication. Any act, which
violates such principle, must immediately be struck down.
Indeed, the principle of conclusiveness of prior adjudications
is not confined in its operation to the judgments of what are
ordinarily known as courts, but extends to all bodies upon
which judicial powers had been conferred.27
The only exceptions to the rule on the immutability of final
judgments are (1) the correction of clerical errors, (2) the
so-called nunc pro tunc entries which cause no prejudice to
any party, and (3) void judgments.28 Respondent-movants,
therefore, question the validity of the Court's Third Division's
rulings and postulate that a deliberation of the case by the
Court en banc is warranted under Sec. 4(2), Article VIII, of
the 1987 Constitution, which reads:
SECTION 4. x x x x
(2) All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall be
heard by the Supreme Court en banc, and all other cases
which under the Rules of Court are required to be
heard en banc, including those involving
the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the
concurrence of a majority of the Members who actually took
part in the deliberations on the issues in the case and voted
thereon, (emphasis added)
In support of their contention, respondent-movants cite the
1953 case of Ykalina v. Oricio, which held that a presidential
order may either be in a written memorandum or merely
verbal.29 They then argue that the issuance of Supplemental
Notice No. 5, effectively cancelling the Swiss Challenge of
petitioner's duly accepted suo moto proposal, was pursuant
to a verbal presidential order or instruction. And pursuant to
the constitutional provision, the challenge against this
presidential directive, so respondent-movants insist, is within
the jurisdiction of Court en banc, not with its divisions.30
We disagree.
Respondent-movants' interpretation of the antiquated 1953
doctrine in Ykalina is highly distorted. In the said case, the
Court, finding for respondent Ananias Oricio (Oricio),
sustained his appointment in spite of having been merely
verbally made. As held:
While the appointment of an officer is usually evidenced by a
Commission, as a general rule it is not essential to the
validity of an appointment that a commission issue, and an
appointment may be made by an oral announcement of
his determination by the appointing power.31 (emphasis
added, citation omitted)
Based on the Court's reasoning, the presidential order that
"may either be in a written memorandum or merely verbal "
adverted to in Ykalina should therefore be understood as
limited specifically to those pertaining to appointments.
Current jurisprudence, however, no longer recognizes the
validity of oral appointments and, in fact, requires the
transmission and receipt of the necessary appointment
papers for their completion.32
To further distinguish Ykalina with the extant case, it was
observed in the former that Oricio's verbal appointment was
established in evidence by a communication duly signed by
the then Acting Executive Secretary "by order of the
President."33 Applied in modern day scenarios, the limited
application of the Ykalina doctrine should only govern those
that were similarly verbally given by the president but were,
nevertheless, attested to by the Executive Secretary. This is
in hew with Section 27 (10) of Book III, Title III, Chapter 9-B
of Executive Order No. 292 (EO 292),34 otherwise known as
the Administrative Code of 1987, which empowers the
Executive Secretary to attest executive orders and other
presidential issuances "by authority of the President." These
"executive orders and presidential issuances," in turn, relate
to the enumeration under Book III, Title I, Chapter 2 of EO
292.35
Here, it is well to recall that the President did not issue any
said executive order or presidential issuance in intimating to
the BCDA that he wishes for the competitive challenge to be
cancelled. There was no document offered that was signed
by either the Chief Executive or the Executive Secretary, for
the President, to that effect. The situation, therefore, does
not involve a presidential order or instruction within the
contemplation of Sec. 4(2), Article VIII of the Constitution,
and, consequently, does not fall within the jurisdiction of the
Court en banc. Given the glaring differences in context, the
doctrine in Ykalina cannot find application herein, and cannot
operate to divest the Court's division of its jurisdiction over
the instant case.
Anent the joint motion for intervention36 filed by the DND and
AFP, both agencies claimed therein that they are the
statutory beneficiaries of the proceeds from the conversion,
development, and disposal of the camps transferred to
BCDA, which include the subject property. These expected
proceeds that would redound to their benefit are to be
applied in funding the AFP Modernization Program as per
Republic Act No. (RA) 7227,37 as amended by RA 10349.38 As
such, so the applicants claim, they have legal and financial
interests and stakes in the outcome of the subject matter,
and should, therefore, be allowed to intervene.
The argument does not hold merit.
Intervention is not a matter of absolute right but may be
permitted by the Court when the applicant shows facts which
satisfy the requirements of the statute authorizing
intervention."39 Under the Rules of Court,40 what qualifies a
person to intervene is his possession of a legal interest in the
case - be it in the subject matter of litigation itself, in the
success of the parties, or in the resultant distribution of
property in custodia legis. The Court has further expounded
on this concept of legal interest and set the parameters for
granting intervention as follows:41
xxx As regards the legal interest as qualifying factor, this
Court has ruled that such interest must be of a direct and
immediate character so that the intervenor will either gain or
lose by the direct legal operation of the judgment. The
interest must be actual and material, a concern which is
more than mere curiosity, or academic or sentimental
desire; it must not be indirect and contingent, indirect
and remote, conjectural, consequential or collateral.
However, notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound discretion of
the court, the exercise of which is limited by considering
"whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties
and whether or not the intervenor's rights may be fully
protected in a separate proceeding, (emphasis
added)ChanRoblesVirtualawlibrary
In the case at bar, the DND and AFP moved for intervention
on the ground that they are the beneficiaries of the proceeds
from the project to be undertaken by the BCDA. Obviously,
this "right to the proceeds" is far from actual as it veritably
rests on the success of the bidding process, such that there
will be no proceeds that will accrue to their benefit to speak
of if the project does not push through. All the applicants
have then, at best, is an inchoate right to the proceeds of the
development of the property in litigation. Said inchoate right,
contradistinguished with vested rights that have become
fixed and established, are still expectant and contingent and,
thus, open to doubt or controversy.42 Consequently, the said
right does not constitute sufficient legal interest that would
qualify the DND and AFP, in this case, to intervene. And in
any event, regardless of the presence or absence of sufficient
legal interest, the Comment in Intervention43 filed does not
contain any new issue that has not yet been resolved by the
Court in its Decision and Resolution. Hence, there is no
cogent reason to grant the motion for intervention and to
admit DND and AFP's comment.
As a final note, the Rule of Law allows the citizenry to
reasonably assume that future conduct will be in observance
of government regulations, and to conceivably expect that
any deviation therefrom will not be countenanced.44 The
Judiciary, therefore, undertakes to strengthen the Rule of
Law by embedding a sense of predictability in the
jurisprudence it builds.
To allow the government to trample on the very rules it itself
issued and to renege on its contractual and legal obligations
by invoking the all too familiar mantra of public interest, at
any time it pleases, will only result in uncertainty in the
application of laws, a trait inimical to the Rule of Law. The
Court, therefore, steps in to send a strong signal that the
government will be honorable in its dealings and that it can
be trusted in the partnerships it forges with the private
sector. In holding respondent-movants accountable for the
representations they made during the long drawn-out
negotiation process and during the times the competitive
challenge repeatedly encountered roadblocks in the form of
constant delays and postponements, the Court endeavors to
concretize into a norm the government's strict adherence to
its statutory enactments, and its fulfilment in good faith of
the commitments it made and of the covenants it entered
into. By granting SMLI's petition, We ruled that this is the
conduct the public should reasonably expect of the
government. This is what strengthening the Rule of Law
exacts.
Nevertheless, We underscore Our finding that "the
government is not without protection for it is not
precluded from availing of safeguards and remedies it
is entitled to after soliciting comparative proposals, as
provided under the TOR and the NEDA JV
Guidelines".45 Indeed, there are sufficient safeguards
installed in the guidelines to ensure that the government will
not be in the losing end of the agreement; enough, in fact, to
avoid the dreaded "unwarranted, irreparable injury" that it
will allegedly sustain. If only respondent-movants devoted
sufficient time in perusing and reviewing the NEDA JV
guidelines, they would have identified the remedies BCDA,
and ultimately the Philippine government, is entitled to that
would have dispelled any apprehension towards conducting
the competitive challenge, and any fear of the government
ending up with a low price for the lot.
WHEREFORE, in view of the foregoing, the instant Motion
for Leave to file Second Motion for Reconsideration and to
Admit the Attached Second Motion for Reconsideration (With
Motion for the Court en banc to Take Cognizance of this Case
and/to Set the Case for Oral Argument Before the Court en
banc), filed by the respondent-movants Bases Conversion
Development Authority and Arnel Paciano D. Casanova, is
hereby DENIED for lack of merit. Likewise, the Motion for
Leave to File Comment-in-Intervention and to Admit
Attached Comment-in-Intervention, jointly filed by the
Department of National Defense and the Armed Forces of the
Philippines, is hereby DENIED.
No further pleadings, motions, letters, or other
communications shall be entertained in this case.
SO ORDERED.chanroblesvirtuallawlibrary
14. Revocation of Appointment
G.R. No. 129616            April 17, 2002
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY
(PPA) and RAMON ANINO, petitioners,
vs.
JULIETA MONSERATE, respondent.
SANDOVAL-GUTIERREZ, J.:
This petition for review on certiorari1 seeks to set aside the Decision
dated June 20, 1997 of the Court of Appeals in CA-G.R. No.
39670,2 declaring null and void the Resolution No. 952043 dated
March 21, 1995 and Resolution No. 956640 dated October 24, 1995
of the Civil Service Commission (CSC), and ordering the
reinstatement of Julieta G. Monserate as Division Manager II of the
Resources Management Division, Ports Management Office,
Philippine Ports Authority (PPA), Iloilo City.
The facts are:
Julieta Monserate, respondent, started her government service
in 1977 as Bookkeeper II in the Port Management Office, PPA,
Iloilo City. Barely a year later, she was promoted to the
position of Cashier II and then as Finance Officer (SG-16) in
1980.3
In the early part of 1988, when the PPA underwent a reorganization,
respondent applied for the permanent position of Manager II (SG-19)
of the Resource Management Division, same office. The Comparative
Data Sheet4 accomplished by the PPA Reorganization Task Force
shows the ranking of the six (6) aspirants to the said position, thus:
rendered ineffective respondent's appointment based on "(1) CSC MC
No. 5, s. 1988, Par. 3;7 (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and
Par. B;8 and (3) Civil Service Eligibility." These grounds were not
explained or discussed in the Resolution, the dispositive portion of
which reads:

"COMPARATIVE DATA SHEET "WHEREFORE, premises considered, this Board upholds the
appointment of Ramon A. Anino as Resources Management
OFFICE: PMO ILOILO Division Manager of the Port Management Office of Iloilo."

DIVISION: RES. MANAGEMENT On October 24, 1988, respondent was furnished a copy of PPA
DIVISION Special Order No. 479-889 (entitled "Creation of the PPA Manager's
Pool"), dated September 28, 1988, issued by the new PPA General
POSITION: DIVISION MANAGER Manager, Mr. Rogelio A. Dayan. That Special Order excluded the
name of respondent from the pool-list and placed instead the name of
REQUIRED CS ELIG.: CS PROF / RA 1080 petitioner as Manager II, Resource Management Division. In effect,
the Special Order implemented the August 11, 1988 Resolution of the
CANDIDATES ELIGIBILITY xxx
PPA Appeals Board. 1âwphi1.nêt
1. MONSERATE, JULIETA CS Prof. xxx
Aggrieved, respondent filed with the PPA General Manager an
2. ANINO, RAMON 1st grade xxx appeal/request for clarification dated November 2, 1988.10 She
questioned her replacement under PPA Special Order No. 479-88,
3. TEODOSIO, APRIL PD 907 (CPA) xxx claiming that the proceedings before the PPA Appeals Board were
irregular because (1) she was not notified of the hearing before it; (2)
4. MORTOLA, DARIO CS Prof. xxx she was not furnished a copy of the August 11, 1988 PPA Appeals
Board Resolution or a copy of the protest filed by petitioner
5. ESPINOSA, AMALIK Bar xxx
Anino;11 (3) she was not informed of the reasons behind her
6. PERFECTO, BASCOS RA 1080 xxx replacement; and (4) their Port Manager (in Iloilo City), who was then
an official member of the Board, was not included in the said
proceedings.
On February 1, 1988, Maximo Dumlao, Jr., then General Manager of
the PPA, appointed5 respondent to the position of Manager II On November 8, 1988, pending resolution of her appeal/request for
(Resource Management Division). On even date, respondent clarification, respondent received a copy of PPA Special Order No.
assumed office and discharged the functions thereof. On July 8, 1988, 492-8812 dated October 21, 1988, also issued by General Manager
the CSC, through Guillermo R. Silva (Assistant Director of the Civil Dayan. This PPA Order officially reassigned her to the position of
Service Field Office-PPA) approved her appointment. Administrative Officer (SG-15) which was petitioner Anino's former
position and was lower than her previous position as Finance Officer
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked (SG 16) before she was appointed as Division Manager.
second to respondent per the Comparative Data Sheet earlier quoted,
filed an appeal/petition with the PPA Appeals Board, protesting Apparently at a loss with the turn of events, coupled by the inaction of
against respondent's appointment. The PPA Appeals Board, in a PPA General Manager Dayan on her earlier appeal/request for
Resolution6 dated August 11, 1988, sustained the protest and clarification, respondent filed on November 25, 1988 a "precautionary
appeal"13 with the CSC. She manifested that as of said date
(November 25), she has not yet been furnished a certified copy of the
PPA Appeals Board Resolution.
On January 2, 1989, respondent received a copy of her new
appointment as Administrative Officer dated October 1, 1988.14 It was
also during this time when she learned that PPA General Manager
Dayan had just issued petitioner's appointment dated October 21,
1988 as Manager II in the Resource Management Division effective
February 1, 1988.
On January 16, 1989, respondent filed with the CSC an appeal
formally protesting against petitioner Anino's appointment and at the
same time questioning the propriety of the August 11, 1988
Resolution of the PPA Appeals Board. This appeal remained pending
with the CSC for more than six (6) years despite respondent's
requests for early resolution. In the meantime, she assumed the
position of Administrative Officer.
Eventually, the CSC, in its Resolution No. 95-204315 dated March 21,
1995, dismissed respondent's appeal, thus:
"It is well-established rule that an appointment, although
approved by this Commission, does not become final until the
protest filed against it is decided by the agency or by the
Commission. Although Monserate had already assumed the
position of RMD Manager II, the appointing authority may still
withdraw the same if a protest is seasonably filed. This is
covered by Section 19, Rule VI of the Omnibus Rules
implementing EO 292 x x x.
"Monserate's claim that she is more qualified than Anino is not
relevant to the issue before this Commission. In cases of
protest filed or appealed to the Commission, the main question
to be resolved is whether or not the appointee meets the
qualification standard. x x x. The Commission will not disturb
the choice of the appointing authority as long as the appointee
meets the qualification prescribed for the position in question."
Respondent filed a motion for reconsideration but the same was
denied by the CSC in its Resolution No. 95-6640 dated October 24,
1995.
In due time, respondent filed with the Court of Appeals a petition for
review impleading as respondents the PPA General Manager and
petitioner Anino.
On June 20, 1997, the Court of Appeals rendered a
Decision16 nullifying the twin Resolutions of the CSC. It ruled that the
August 11, 1988 Resolution of the PPA Appeals Board was not
supported by evidence and that the same was irregularly issued due
to lack of proper notice to respondent with respect to the Board's
proceedings. It concluded that her reassignment from the position of
Manager II, Resource Management Division (SG-19), to the position
of Administrative Officer (SG-15) was a demotion violative of her
constitutional right to security of tenure and due process. The
dispositive portion of the Court of Appeals' Decision reads:
"THE FOREGOING CONSIDERED, judgment is hereby
rendered declaring as null and void Resolution Nos. 952043
and 95640 (should be 956640) dated March 21 and October
21, 1988 (should be October 24, 1995), of the Civil service
Commission; and directing the reinstatement of the petitioner
to the position of Resource Management Division Manager II.
"SO ORDERED."
Thereupon, Ramon Anino and the PPA General Manager filed on
August 14, 1997 the present petition. On November 30, 1997,
petitioner Anino retired from the government service.17
Petitioners ascribe to the Court of Appeals the following errors:
I THE COURT OF APPEALS SERIOUISLY ERRED IN
FINDING THAT RESPONDENT MONSERATE WAS
DEMOTED FROM RESOURCES MANAGEMENT DIVISION
MANAGER TO ADMINISTRATIVE OFFICER, THUS
VIOLATING HER RIGHT TO SECURITY OF TENURE.
II THE COURT OF APPEALS GRAVELY ERRED IN NOT
ALIGNING ITSELF WITH THE WELL-NIGH RULE THAT
RESPONDENT MONSERATE'S APPOINTMENT AS
RESOURCE MANAGEMENT DIVISION MANAGER,
ALTHOUGH APPROVED BY CSC, DOES NOT BECOME
 FINAL UNTIL THE PROTEST FILED AGAINST HER IS
FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY
OR THE CSC.
III THE COURT OF APPEALS COMMITTED A SERIOUS
ERROR OF JUDGMENT IN IGNORING THAT IN CASES OF
PROTEST FILED OR APPEALED TO THE CSC, THE MAIN
QUESTION TO BE RESOLVED IS WHETHER OR NOT THE
APPOINTEE MEETS THE QUALIFICATION STANDARD. 18
The pivotal issue in this case is whether or not there was due process
when respondent was replaced by petitioner Anino from her position
as Manager II, Resource Management Division, and demoted as
Administrative Officer.
Petitioners vehemently aver that respondent was never demoted
since demotion, being in the nature of administrative penalty,
presupposes a conviction in an administrative case. Here, respondent
was not charged of any administrative case. Rather, she was
displaced from her position as an "aftermath of the PPA
reorganization, authorized by law, the implementation of which having
been carried out with utmost good faith."
Furthermore, the said displacement was just the necessary effect of
the August 11, 1988 Resolution of the PPA Appeals Board which
sustained petitioner Anino's timely protest against respondent's
appointment. Petitioners theorize that the appointment of respondent
as Resource Management Division Manager did not become final until
the protest filed against her was favorably decided in her favor by the
CSC. In support of this contention, they cited Section 19, Rule VI of
the Omnibus Rules Implementing Book V of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), which
provides inter alia:
"SEC 19. An appointment, though contested, shall take effect
immediately upon its issuance if the appointee assumes the
duties of the position and the appointee is entitled to receive
the salary attached to the position. However, the appointment,
together with the decision of the department head, shall be
submitted to the Commission for appropriate action within 30
days from the date of its issuance, otherwise the appointment
becomes ineffective thereafter. Likewise, such appointment
shall become ineffective in case the protest is finally
resolved against the protestee, in which case, he shall be
reverted to his former position."
Petitioners also contend that the head of an agency, being the
appointing authority, is the one most knowledgeable to decide who
can best perform the functions of the office. The appointing authority
has a wide latitude of choice subject only to the condition that the
appointee should possess the qualifications required by law.
Consequently, "the CSC acted rightly when it did not interfere in the
exercise of discretion by the PPA appointing authority, there being no
evidence of grave abuse of discretion thereof or violation of the Civil
Service Law and Rules."
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do
with respondent's demotion from the contested position of Manager
II, Resource Management Office (SG-19), to the lower position of
Administrative Officer (SG-15). Antithetically, it was precisely because
of the said reorganization that respondent applied to the higher
position of Division Manager II. In fact, the Comparative Data Sheet
accomplished by the PPA Reorganization Task Force itself shows that
respondent ranked No. 1, while petitioner Anino ranked No. 2, from
among the six (6) contenders to the said post. Respondent was
eventually issued a permanent appointment as such Division Manager
on February 1, 1988 by then PPA General Maximo Dumlao, Jr.,
during which time she actually assumed office and discharged its
functions. This appointment was later approved on July 8, 1988 by the
CSC, through Assistant Director Guillermo R. Silva of the Civil Service
Field Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of
the August 11, 1988 Resolution of the PPA Appeals Board when
respondent was demoted to the lower position of Administrative
Officer. This is further shown by the following orders and
appointments subsequently issued by then PPA General Manager
Rogelio Dayan:
1. PPA Special Order No. 479-88 dated September 28, 1988
which excluded respondent Monserate from the PPA
Managers' pool-list;
 2. Appointment of respondent, dated October 1, 1988, to the
position of Administrative Officer;
3. PPA Special Order No. 492-88 dated October 21, 1988
which officially reassigned respondent to the position of
Administrative Officer; and
4. Appointment of petitioner Anino, dated October 21, 1988, to
the position of Manager II, Resource Management Division,
effective February 1, 1988.
Therefore, contrary to petitioners' claim, respondent was demoted, not
by reason of the PPA reorganization in 1988, but due to the PPA
Appeals Board Resolution dated August 11, 1988 sustaining petitioner
Anino's protest against respondent's appointment.
Unfortunately for petitioners, this Court cannot accord validity to the
August 11, 1988 Resolution of the PPA Appeals Board
which "upholds the appointment of Ramon A. Anino as Resource
Management Division Manager." But how can it uphold his
appointment when he was not yet appointed then? It bears stressing
that he was appointed on a much later date - October 21,
1988, or more than two (2) months after August 11, 1998 when
the PPA Appeals Board Resolution was issued. Stated differently,
the PPA Appeals Board could not uphold an appointment which was
not yet existing.
Equally questionable are the grounds for respondent's demotion
stated in the August 11, 1998 Resolution: "(1) CSC MC No. 5, s.
1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;
and (3) Civil Service Eligibility." These grounds are incomprehensible
for lack of discussion or explanation by the Board to enable
respondent to know the reason for her demotion.
We uphold the Court of Appeals' finding that the August 11, 1998 PPA
Appeals Board Resolution was void for lack of evidence and proper
notice to respondent. As aptly held by the Appellate Court:
"In the August 11, 1988 Resolution by the PPA Appeals Board
(Ibid., p. 46) upholding the appointment of the private
respondent (Ramon Anino) as Division Manager, the grounds
against petitioner's (Julieta Monserate) appointment were: a)
the CSC MC No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2.
1986, Par. A, 1.2 and Par. B; and c) Civil service eligibility.
"x x x
"To us, the August 11, 1988 Resolution by the PPA Appeals
Board was not supported by evidence. Of the CSC MC No. 5,
the petitioner had no pending administrative or criminal case at
the time of her appointment as Manager. x x x.
"With respect to the CSC MC No. 10, Par. A (1.2) and Par. B,
the processing, review, evaluation and recommendation of her
appointment as Manager II, passed several committees
created by the PPA. x x x. Moreover, she had a 1.9 average
performance rating compared to the private respondent who
only got 2.03. x x x.
"On eligibility, she has a Career Service Professional eligibility
while the private respondent only has a First Grade Civil
Service Eligibility.
"She added that she was not aware of any proceeding on her
demotion as a Division Manager. As a matter of fact, it was
only upon her iniative sometime during the latter part of
November, 1988 that she was able to obtain a copy of the
August 11, 1988 Resolution of the Appeals Board. The
resolution sustained the private respondent's appointment as
Division Manager even if on August 11, 1988, he was not yet
extended any appointment. As a matter of fact, he was
appointed only on October 1, 1988 (should be October 21,
1988).
"Furthermore, she said that the resolution of the PPA Appeals
Board appears irregular, if not null and void. She was never
notified of any proceeding; she was not furnished either a copy
of the resolution. What she received instead was a Special
Order dated September 29, 1988 already ordering her
demotion. She was not at all given the opportunity of
defending herself before the Appeals Board.
 "x x x.
"In the case now before us, the petitioner did not receive or
was not given a copy of the August 11, 1988 Resolution of the
Appeals Board. She did not even know that she was demoted
until after she received a copy of the of the Special Order No.
479-88."19
From all indications, it is indubitable that substantial and procedural
irregularities attended respondent's demotion from the position of
Manager II, Resource Management Division, to the lower position of
Administrative Officer. Indeed, her demotion, tantamount to a
revocation of her appointment as Manager II, is a patent violation of
her constitutional rights to security of tenure and due process.
In Aquino vs. Civil Service Commission,20 this Court emphasized that
"once an appointment is issued and the moment the appointee
assumes a position in the civil service under a completed
appointment, he acquires a legal, not merely equitable, right (to the
position) which is protected not only by statute, but also by the
constitution, and cannot be taken away from him either by revocation
of the appointment, or by removal, except for cause, and with
previous notice and hearing."
Concededly, the appointing authority has a wide latitude of discretion
in the selection and appointment of qualified persons to vacant
positions in the civil service.21 However, the moment the discretionary
power of appointment is exercised and the appointee assumed the
duties and functions of the position, such appointment cannot
anymore be revoked by the appointing authority and appoint another
in his stead, except for cause. Here, no iota of evidence was ever
established to justify the revocation of respondent's appointment by
demoting her. Respondent's security of tenure guaranteed under the
1987 Constitution [Article IX-B, Section 2, par. (3)] should not be
placed at the mercy of abusive exercise of the appointing power.22
Parenthetically, when the Court of Appeals reinstated respondent to
her legitimate post as Manager II in the Resource Management
Division, it merely restored her appointment to the said position to
which her right to security of tenure had already attached. To be sure,
her position as Manager II never became vacant since her
demotion was void. In this jurisdiction, "an appointment to a non-
vacant position in the civil service is null and void ab initio."23
We now delve on the backwages in favor of respondent.
The challenged Court of Appeals Decision ordered the reinstatement
of respondent without awarding backwages. This matter becomes
controversial because respondent assumed the lower position of
Administrative Officer during the pendency of her protest against
petitioner Anino's appointment to the contested position. Also,
petitioner Anino retired from the service on November 30, 1997.
In this respect, while petitioner Anino's appointment to the contested
position is void, as earlier discussed, he is nonetheless considered
a de facto officer during the period of his incumbency.24 A de
facto officer is one who is in possession of an office and who openly
exercises its functions under color of an appointment or election, even
though such appointment or election may be irregular. 25 In Monroy vs.
Court of Appeals,26 this Court ruled that a rightful incumbent of a public
office may recover from a de facto officer the salary received by the
latter during the time of his wrongful tenure, even though he (the de
facto officer) occupied the office in good faith and under color of title.
A de facto officer, not having a good title, takes the salaries at his risk
and must, therefore, account to the de jure officer for whatever salary
he received during the period of his wrongful tenure. In the later case
of Civil Liberties Union vs. Executive Secretary,27 this Court allowed
a de facto officer to receive emoluments for actual services
rendered but only when there is no de jure officer, thus:
"x x x in cases where there is no de jure officer, a de facto
officer who, in good faith, has had possession of the office and
has discharged the duties pertaining thereto, is legally entitled
to the emoluments of the office, and may in appropriate action
recover the salary, fees and other compensations attached to
the office."
In fine, the rule is that where there is a de jure officer, a de
facto officer, during his wrongful incumbency, is not entitled to the
emoluments attached to the office, even if he occupied the office in
good faith. This rule, however, cannot be applied squarely on the
present case in view of its peculiar circumstances. Respondent had
assumed under protest the position of Administrative Officer
sometime in the latter part of 1988, which position she currently holds.
Since then, she has been receiving the emoluments, salary and other
compensation attached to such office. While her assumption to said
lower position and her acceptance of the corresponding emoluments
cannot be considered as an abandonment of her claim to her rightful
office (Division Manager), she cannot recover full backwages for the
period when she was unlawfully deprived thereof. She is entitled only
to backpay differentials for the period starting from her assumption
as Administrative Officer up to the time of her actual reinstatement to
her rightful position as Division Manager. Such backpay differentials
pertain to the difference between the salary rates for the positions of
Manager II and Administrative Officer. The same must be paid by
petitioner Anino corresponding from the time he wrongfully assumed
the contested position up to the time of his retirement on November
30, 1997.1âwphi1.nêt
WHEREFORE, the petition is DENIED. The challenged Decision of
the Court of Appeals dated June 20, 1997
is AFFIRMED with MODIFICATION in the sense that petitioner
Ramon A. Anino is ordered to pay respondent Julieta Monserate
backpay differentials pertaining to the period from the time he
wrongfully assumed the contested position of Manager II up to his
retirement on November 30, 1997.
SO ORDERED.
15. Ad Interim Appointments
G.R. No. L-19313             January 19, 1962
DOMINADOR R. AYTONA, petitioner,
vs.
ANDRES V. CASTILLO, ET AL., respondents.
R E S O L U T I O N.
BENGZON, C.J.:
Without prejudice to the subsequent promulgation of more extended
opinion, the Court adopted today, the following resolutions: .
On December 29, 1961, then President Carlos P. Garcia appointed
Dominador R. Aytona as ad interim Governor of the Central Bank. On
the same day, the latter took the corresponding oath.
On December 30, 1961, at noon, President-elect Diosdado
Macapagal assumed office; and on December 31, 1961, he issued
Administrative Order No. 2 recalling, withdrawing, and cancelling
all ad interim appointment made by President Garcia after December
13, 1961, (date when he, Macapagal, had been proclaimed elected by
the Congress). On January 1, 1962, President Macapagal appointed
Andres V. Castillo as ad interim Governor of the Central Bank, and
the latter qualified immediately.
On January 2, 1962, both appointed exercised the powers of their
office, although Castillo informed Aytona of his title thereto; and some
unpleasantness developed in the premises of the Central Bank.
However, the next day and thereafter, Aytona was definitely
prevented from holding office in the Central Bank.
So, he instituted this proceeding which is practically, a quo warranto,
challenging Castillo's right to exercise the powers of Governor of the
Central Bank. Aytona claims he was validly appointed, had qualified
for the post, and therefore, the subsequent appointment and
qualification of Castillo was void, because the position was then
occupied by him. Castillo replies that the appointment of Aytona had
been revoked by Administrative Order No. 2 of Macapagal; and so,
the real issue is whether the new President had power to issue the
order of cancellation of the ad interim appointments made by the past
President, even after the appointees had already
qualified.1äwphï1.ñët
The record shows that President Garcia sent to the Commission on
Appointments — which was not then in session — a communication
dated December 29, 1961, submitting "for confirmation" ad
interim appointments of assistant director of lands, councilors,
mayors, members of the provincial boards, fiscals, justices of the
peace, officers of the army, etc.; and the name of Dominador R.
Aytona as Governor of the Central Bank occupies number 45,
between a justice of the peace and a colonel of the Armed Forces.
Another communication of President Garcia bearing the same date,
submitted a list of ad interim appointments of Foreign Affairs officers,
judges, fiscals, chiefs of police, justices of the peace, mayors,
councilors, etc. number 63 of which was that of Dominador R. Aytona
for Governor of the Philippines in the Boards of International Monetary
Fund, International Bank for Reconstruction and Development, etc.
A third communication likewise dated December 29, 1961, addressed
to the Commission on Appointments submitted for confirmation 124
names of persons appointed as judges of first instance, members of
provincial boards, and boards of government corporations, fiscals,
justice of the peace, even one associate justice of this Court
occupying position No. 8 and two associate justices of the Court of
Appeals (9 and 10) between an assistant of the Solicitor-General's
Office, and the chairman of the board of tax appeals of Pasay City,
who in turn are followed by judges of first instance, and inserted
between the latter is the name of another associate justice of the
Court of Appeals.
There were other appointments thus submitted by President Garcia
on that date, December 29, 1961. All in all, about three hundred fifty
(350) "midnight" or "last minute" appointments.
In revoking the appointments, President Macapagal is said to have
acted for these and other reasons: (1) the outgoing President should
have refrained from filling vacancies to give the new President
opportunity to consider names in the light of his new policies, which
were approved by the electorate in the last elections; (2) these
scandalously hurried appointments in mass do not fall within the intent
and spirit of the constitutional provision authorizing the issuance of ad
interim appointments; (3) the appointments were irregular, immoral
and unjust, because they were issued only upon the condition that the
appointee would immediately qualify obviously to prevent a recall or
revocation by the incoming President, with the result that those
deserving of promotion or appointment who preferred to be named by
the new President declined and were by-passed; and (4) the
abnormal conditions surrounding the appointment and qualifications
evinced a desire on the part of the outgoing President merely subvert
the policies of the incoming administration.
It is admitted that many of the persons mentioned in the
communication to the Commission on Appointments dated December
29, 1961, did not qualify. There is evidence that in the night of
December 29, there was a scramble in Malacañan of candidates for
positions trying to get their written appointments or having such
appointments changed to more convenient places, after some last
minute bargaining. There was unusual hurry in the issuance of the
appointments — which were not coursed through the Department
Heads — and in the confusion, a woman appointed judge was
designated "Mr." and a man was designated "Madam." One appointee
who got his appointment and was required to qualify, resorted to the
rush of asking permission to swear before a relative official, and then
never qualified.
We are informed, it is Malacañan's practice — which we find to be
logical — to submit ad interim appointments only when the
Commission on Appointments is in session. One good reason for the
practice is that only those who have accepted the appointment and
qualified are submitted for confirmation. Nevertheless, this time,
Malacañan submitted its appointments on the same day they were
issued; and the Commission was not then in session; obviously
because it foresaw the possibility that the incoming President would
refuse to submit later the appointees of his predecessor. As a result,
as already adverted to, some persons whose names were submitted
for confirmation had not qualified nor accepted their appointments.
Because of the haste and irregularities, some judges of first instance
qualified for districts wherein no vacancies existed, because the
incumbents had not qualified for other districts to which they had been
supposedly transferred or promoted.
Referring specifically to judges who had not qualified, the course of
conduct adopted by Former Chief Justice Moran is cited. Being
ambassador in Spain and desiring to return to this Court even as
associate justice, Moran was tendered an ad interim appointment
thereto by President Quirino, after the latter had lost the election to
President Magsaysay, and before leaving the Presidency. Said
Ambassador declined to qualify being of the opinion that the matter
should be left to the incoming newly-elected President.
Of course, nobody will assert that President Garcia ceased to be such
earlier than at noon of December 30, 1961. But it is common sense to
believe that after the proclamation of the election of President
Macapagal, his was no more than a "care-taker" administration. He
was duty bound to prepare for the orderly transfer of authority the
incoming President, and he should not do acts which he ought to
know, would embarrass or obstruct the policies of his successor. The
time for debate had passed; the electorate had spoken. It was not for
him to use powers as incumbent President to continue the political
warfare that had ended or to avail himself of presidential prerogatives
to serve partisan purposes. The filling up vacancies in important
positions, if few, and so spaced to afford some assurance of
deliberate action and careful consideration of the need for the
appointment and the appointee's qualifications may undoubtedly be
permitted. But the issuance of 350 appointments in one night and
planned induction of almost all of them a few hours before the
inauguration of the new President may, with some reason, be
regarded by the latter as an abuse Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill all vacant
positions1 irrespective of fitness and other conditions, and thereby
deprive the new administration of an opportunity to make the
corresponding appointments.
Normally, when the President makes appointments the consent of the
Commission on Appointments, he has benefit of their advice. When
he makes ad interim appointments, he exercises a special prerogative
and is bound to be prudent to insure approval of his selection either
previous consultation with the members of the Commission or by
thereafter explaining to them the reason such selection. Where,
however, as in this case, the Commission on Appointments that will
consider the appointees is different from that existing at the time of
the appointment2 and where the names are to be submitted by
successor, who may not wholly approve of the selections, the
President should be doubly careful in extending such appointments.
Now, it is hard to believe that in signing 350 appointments in one
night, President Garcia exercised such "double care" which was
required and expected of him; and therefore, there seems to be force
to the contention that these appointments fall beyond the intent and
spirit of the constitutional provision granting to the Executive authority
to issue ad interim appointments.
Under the circumstances above described, what with the separation
of powers, this Court resolves that it must decline to disregard the
Presidential Administrative Order No. 2, cancelling such "midnight" or
"last-minute" appointments.
Of course, the Court is aware of many precedents to the effect that
once an appointment has been issued, it cannot be reconsidered,
specially where the appointee has qualified. But none of them refer to
mass ad interim appointments (three-hundred and fifty), issued in the
last hours of an outgoing Chief Executive, in a setting similar to that
outlined herein. On the other hand, the authorities admit of
exceptional circumstances justifying revocation3 and if any
circumstances justify revocation, those described herein should fit the
exception.
Incidentally, it should be stated that the underlying reason for denying
the power to revoke after the appointee has qualified is the latter's
equitable rights. Yet it is doubtful if such equity might be successfully
set up in the present situation, considering the rush conditional
appointments, hurried maneuvers and other happenings detracting
from that degree of good faith, morality and propriety which form the
basic foundation of claims to equitable relief. The appointees, it might
be argued, wittingly or unwittingly cooperated with the stratagem to
beat the deadline, whatever the resultant consequences to the dignity
and efficiency of the public service. Needless to say, there are
instances wherein not only strict legality, but also fairness, justice and
righteousness should be taken into account.
WHEREFORE, the Court exercising its judgment and discretion in the
16. Temporary or Acting Appointments
[G.R. No. 139251. August 29, 2002.]
MA. ERLY P. ERASMO, Petitioner, v. HOME INSURANCE
& GUARANTY CORPORATION, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45
of the Rules of Court contesting the Decision of the Court of
Appeals dated June 30, 1999 in CA-G.R. SP No. 47037 which
affirmed the decision of the Civil Service Commission
dismissing the appeal of petitioner Ma. Erly P. Erasmo and
denying her request for reinstatement, payment of back
wages and other benefits. 1chanrob1es virtua1 1aw 1ibrary
Petitioner started working with respondent Home Insurance
& Guaranty Corporation (HIGC) in 1982 as a consultant on
the Project Evaluation Department, 2 and held various
positions therein, including Manager of Project Evaluation
Department (April 1, 1982 to December 31, 1985), 3
Manager of Accounts Management (January 1, 1986 to April
1987), 4 Assistant Vice-President of Accounts Management
(May 1987 to July 1988), 5 Manager II of Guaranty and
Credit Insurance Department (August 1988 to March 15,
1992), 6 and Officer-in-Charge of Technical Service/Guaranty
and Credit Insurance Group (TS/GCIG) (March 16 to June 14,
1992), 7 until finally, she was promoted to Vice-President of
TS/GCIG on June 15, 1992. 8 The nature of her appointment
was "promotion" and her employment status was
"temporary," since the position is a Career Executive Service
Office (CESO) and petitioner lacks the required CES
eligibility. 9 wages, but her request was denied. She was also informed
On February 24, 1993 petitioner was administratively
charged with: (1) neglect of duty, (2) incompetence in the
performance of official duties, (3) conduct prejudicial to the
best interest of the service, and (4) directly or indirectly
having financial and material interest in any transaction
requiring the approval of her office. 10
In the meantime, petitioner appealed the status of her
temporary appointment to the Civil Service Commission
(CSC), which on March 12, 1993, issued Resolution No. 93-
990, holding that a CES eligibility is required to a CES
position, and even if one possesses such eligibility, still the
appointment cannot be considered permanent unless an
appointment to the rank has been granted by the President
of the Philippines. 11
On June 10, 1993, respondent, through its President,
Fernando M. Miranda, Jr., wrote petitioner, informing her
that "by operation of law, your appointment shall be deemed
terminated and shall automatically cease to have further
force and effect at the close of office hours on the expiration
of your appointment." She was also advised that the
pendency of the administrative case against her precludes
any renewal of her appointment. 12
Petitioner, through counsel, then sought the opinion of the
Executive Director of the Career Executive Service Board
who, on August 31, 1993, replied that a temporary
appointment to a CES position can be revoked at any time by
the appointing authority, without waiting for a specific period
to lapse; that the filing of an administrative case does not
automatically revoke the appointment nor does it affect the
validity of the temporary appointment; and that for the
termination to be effective, there must be a categorical
and/or positive act of termination of service. 13
Encouraged by said opinion, petitioner wrote respondent
seeking reinstatement to her previous position with back
that the position that she vacated has already been filled up
and approved by the CSC on a permanent basis. 14
When the investigating committee of the HIGC recommended
the dismissal of the charges against petitioner on June 29,
1995, 15 the latter again wrote respondent asking that she
be allowed to continue to discharge her duties and
responsibilities as VP for TS/GCIG, alleging that respondent
furnished her with a copy of the report of the investigation
committee only eight (8) months thereafter. Again,
respondent denied her demands. 16
One (1) year after, petitioner wrote the Chairperson of the
CSC, appealing her case. 17 The CSC dismissed her appeal
on February 3, 1998 per Resolution No. 980182. According to
the CSC: (1) petitioner is not protected by the security of
tenure clause under the Constitution because she was
holding her position of Vice-President under a temporary
status; (2) her appeal was filed beyond the 15-day
reglementary period; and (3) the appointing authority cannot
generally be compelled to issue an appointment. 18
On petition for review, the Court of Appeals affirmed the
CSC’s resolution and dismissed the petition for lack of merit.
19

Petitioner now comes before this Court alleging the following
errors committed by the appellate court:chanrob1es virtual
1aw library
"I
"THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT A PERMANENT CIVIL SERVICE EMPLOYEE, LIKE THE
PETITIONER WHO WORKED WITH RESPONDENT HIGC
CONTINUOUSLY FOR TWELVE (12) YEARS HOLDING
VARIOUS MANAGERIAL POSITIONS AND WHO ACCEPTED A
PROMOTIONAL APPOINTMENT AS HIGC’S VICE PRESIDENT
OF TS/GCIG SUBJECT TO HER COMPLIANCE OF CIVIL
SERVICE ELIGIBILITY WHICH PETITIONER DULY COMPLIED
WITH, IS STILL TERMINABLE AT THE PLEASURE AND
DISCRETION OF THE APPOINTING POWER.
"II
"THE HONORABLE COURT OF APPEALS ERRED IN FINDING
THAT THE APPROVAL OF THE PERMANENT APPOINTMENT OF
PETITIONER’S SUCCESSOR TO THE POSITION OF VICE
PRESIDENT OF RESPONDENT’S TS/GCIG AS PER BOARD
RESOLUTION NO. 55-1993 RATIFIED PETITIONER’S
SEPARATION FROM THE HIGC.
"III
"THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT THE DOCTRINE ENUNCIATED IN THE CASE OF
‘ACHACOSO VS. MACARAIG,’ 195 SCRA 235 (MARCH 13,
1991) APPLIES TO PETITIONER.
"IV
"THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT PETITIONER IS NOT ENTITLED TO BE REVERTED TO
THE POSITION SHE WAS OCCUPYING PRIOR TO HER
APPOINTMENT AS VICE PRESIDENT FOR TS/GCIG ON THE
GROUND THAT HIGC HAS EXERCISED ITS PREROGATIVE IN
RESPECT OF PETITIONER’S TENURE BY NOT RENEWING HER
TEMPORARY APPOINTMENT, AND HER CONTINUANCE IN
HIGC SERVICE, BY NOT REAPPOINTING HER TO HER
FORMER POSITION.
"V
"THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT PETITIONER’S APPEAL IN THE CIVIL SERVICE
COMMISSION WAS FILED BEYOND THE REGLEMENTARY
PERIOD." 20
The principal issue to be resolved in this case is whether or
not petitioner is entitled to be reinstated to the position of
Vice-President of TS/GCIG of respondent HIGC. NO
We answer in the negative.
The facts of this case indubitably show that petitioner’s
promotional appointment as Vice-President of TS/GCIG is
merely temporary in nature. Her appointment papers dated
June 11, 1992 clearly indicate it. 21 This is because
petitioner does not possess a career executive service
eligibility which is necessary for the position of Vice-President
of TS/GCIG, it being a career service executive office. Her
new appointment, being temporary in character, was
terminable at the pleasure of the appointing power with or
without a cause, 22 and petitioner does not enjoy security of
tenure.
In the recent case of Matibag v. Benipayo, we reiterated the
long standing ruling that a person who is issued a temporary
appointment does not enjoy security of tenure,
thus:jgc:chanrobles.com.ph

"As respondent does not have the rank appropriate for the
position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, and she can claim
no security of tenure in respect of that position. As held in
Achacoso v. Macaraig:chanrob1es virtual 1aw library
‘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 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 as an exception to the rule, may be appointed
to it merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to him
cannot be regarded as permanent even if it may be so
designated . . .’" 23
Petitioner maintains that we apply the ruling in Palmera v.
Civil Service Commission, 235 SCRA 87 [1994], instead of
Achacoso v. Macaraig, 195 SCRA 235 [1991]. 24 This,
however, is not possible.
The Achacoso case, penned by Justice Isagani Cruz in 1991,
laid down the jurisprudential basis in cases involving security
of tenure in career executive service positions. 25 Simply
put, it was ruled therein that a CES eligibility is required for a
CES position, such that an appointment of one who does not
possess such eligibility shall be temporary and may be
withdrawn at will by the appointing authority and "at a
moment’s notice. 26 Thus, it was concluded that Achacoso,
not being CES eligible, was merely holding a temporary
appointment, and may be validly removed. His separation is
termed as expiration of term.
On the other hand, in the Palmera case, likewise penned by
Justice Isagani Cruz, this time in 1994, it was inferred from
the circumstances of the case that Palmera, who accepted a
contractual appointment, had no intention of abandoning his
permanent position and security of tenure. Having worked in
the government for 34 years, it was held that by signing the
contract, Palmera couldn’t be reasonably supposed to have
knowingly relinquished his permanent post and all its
concomitant rights and benefits. Also, the petitioner was
already getting on in years and could not afford to face an
uncertain future without a regular and steady income. More
importantly, Palmera was led to believe that the contract he
signed was merely a subterfuge to provide legal basis for the
payment of his salary for the period of January 1 to
December 31, 1987, and he was not informed of the real
objective of the contract. It was also ruled that the contract
was void and cannot be the basis for the claim that Palmera
abandoned his post. 27
The foregoing circumstances are not present in petitioner’s
case. For one, it cannot be deduced that she did not
understand the implications of her promotional, albeit
temporary, appointment. In the first place, she was under no
obligation to accept such promotion, for there is no law that
compels an employee to accept a promotion, as a promotion
is in the nature of a gift or reward, which a person has a
right to refuse. 28 And although she was formerly holding a
permanent appointment, she accepted such temporary
appointment. Having done so, petitioner had abandoned or
given up her former position. When she accepted the
temporary appointment, in effect, she abandoned her right
to security of tenure as we have ruled in Romualdez v. Civil
Service Commission, to wit:jgc:chanrobles.com.ph
". . . This is not a case of removal from office. Indeed, when
he accepted this temporary appointment he was thereby
effectively divested of security of tenure. A temporary
appointment does not give the appointee any definite tenure
of office but makes it dependent upon the pleasure of the
appointing power. Thus, the matter of converting such a
temporary appointment to a permanent one is addressed to
the sound discretion of the appointing authority. Respondent
CSC cannot direct the appointing authority to make such an
appointment if it is not so disposed." 29
For another, the crucial fact remains — petitioner does not
possess the required CES eligibility to qualify her for the
position. While the law allows in exceptional cases the
appointment of a non-CES eligible provided that the
appointee subsequently passes the CES Examinations, 30
petitioner is yet to completely pass and attain her CES
eligibility. Clearly therefore, the Palmera case is not
applicable, and respondent cannot be compelled to reinstate
petitioner.
On the matter of whether or not petitioner may be reverted
to her position previous to her appointment as VP for
TS/GCIG, again, we must answer in the negative. Suffice it
to say that the power of appointment is essentially
discretionary and cannot be controlled, not even by the
Court, as long as it is exercised properly by the appointing
authority. 31
Finally, petitioner insists that she timely brought her case to
the Civil Service Commission. According to her, her letter to
the CSC was not an "appeal" but a petition seeking to
implement the decision of the investigating committee. But
whether her letter to the CSC was an appeal or a petition,
the CSC nevertheless entertained and decided on her petition
or appeal which decision we find to be without any reversible
error.
WHEREFORE, the petition for review on certiorari is hereby
DENIED for lack of merit.chanrob1es virtua1 1aw 1ibrary
17. Designations
[G.R. NO. 157950 : June 8, 2005]
LIBRADA D. TAPISPISAN, Petitioner, v. COURT OF
APPEALS; CIVIL SERVICE COMMISSION; HON.
RICARDO T. GLORIA, Secretary, Department of
Education, Culture and Sports (DECS); DR. NILO L.
ROSAS, Regional Director, DECS-NCR; ATTY. RICARDO
T. SIBUG, Superintendent of Schools, Pasay City; MRS.
ALICIA G. BENZON, Principal IV, Coordinating
Principal, South District, Pasay City; MRS. MYRNA
TEVES, Teacher, Gotamco Elementary School, Pasay
City; and MRS. AIDA RUMBAOA, Teacher, Villanueva
Elementary School, Pasay City, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is the Petition for Review on Certiorari filed
by Librada D. Tapispisan seeking the reversal of the
Decision1 dated December 12, 2002 of the Court of Appeals
(CA) in CA-G.R. SP No. 45485.
The assailed decision affirmed the resolutions of the Civil
Service Commission (CSC) dismissing the petitioner's protest
against the designation of respondent Aida M. Rumbaoa as
Officer-in-Charge (OIC)-Head Teacher of P. Villanueva
Elementary School and respondent Myrna M. Teves as OIC-
Principal of Don Carlos Elementary School. The petitioner
also seeks the reversal of the appellate court's Resolution
dated April 10, 2003, denying her motion for reconsideration.
The factual and procedural antecedents of the case are as
follows:
Petitioner Tapispisan is a public school teacher and has been
occupying the position of Teacher III since September 1,
1992. She has been teaching for the last thirty (30) years Petitioner Tapispisan enumerated her credentials and
and is currently assigned at the Villamor Air Base Elementary qualifications,2 thus:
School in Pasay City.
Degrees Bachelor of Science in Elem. Education
On May 30, 1995, respondent Atty. Ricardo T. Sibug (Schools Completed : (BSEd) FEU, 1970
Division Superintendent, Pasay City) issued Division
Memorandum No. 33 designating respondent Rumbaoa as Master of Arts in Industrial Education
OIC-Head Teacher of P. Villanueva Elementary School and (MAIE) Adm. & Supervision, TUP, 1992
respondent Teves as OIC-Principal of Don Carlos Elementary Civil Service Professional Board Exam< for
School, both schools are in Pasay City. Feeling that she had Eligibility : Teachers, 71.06%, 1982
been unduly by-passed, petitioner Tapispisan filed with
respondent Sibug a protest contesting such designation. The Competitive Exam, 90%, 1971
latter, however, denied the protest. The petitioner then
Classroom Teacher, 1971-1981
brought the matter to respondent Dr. Nilo L. Rosas, Regional
Positions Held : E.G.T., 1981-1992
Director of the Department of Education, Culture and Sports
Teacher III, 1992-Present
(DECS) for National Capital Region (NCR) who, likewise,
denied the protest. Achievements, DECS Rating, 1993-1994, 94%
Awards as Teacher
On December 11, 1995, the petitioner filed with the DECS a And Distinctions :
"Complaint/Protest Against the Illegal and Indiscriminate
Appointment and Promotion of Mesdames Aida Rumbaoa and Potential Teacher Rating 1994-1995,
Myrna Teves," docketed as Adm. Case No. 96-001. Together 9.8
with respondents Rumbaoa and Teves, also named as Bronze Service Award Boys Scouts of
respondents were Dr. Rosas, Atty. Sibug and Mrs. Alicia G. the Phils., 1990
Benzon (Principal IV, Coordinating Principal, South District).
Certificate of Merit
In her complaint/protest, petitioner Tapispisan alleged that Villamor Air Base Elem. School, 1989
the designation of respondents Rumbaoa and Teves was Recognition and Appreciation Nichols
made with evident favoritism and in gross violation of Civil Air Base, 1979
Service and DECS rules and regulations on promotions. The
petitioner claimed that she was more qualified for promotion
The petitioner claimed that she completed her masters
than respondents Rumbaoa and Teves. She pointed out that
degree long before respondents Rumbaoa and Teves
in the 1994-1995 annual qualifying examination conducted
completed theirs and that she became Teacher III ahead of
for both teachers and principals, she placed No. 4 in the
them. However, in making their recommendation,
Division List of Promotables for Head Teachers while the
respondents Benzon and Sibug allegedly disregarded these
names of respondents Rumbaoa and Teves did not appear
objective factors or criteria for promotion and instead
therein. Nonetheless, they were the ones recommended and
resorted to personal or relative factors, which are the
designated to the subject positions.
weakest of the standards for evaluation, to favor
respondents Rumbaoa and Teves.
The petitioner thus prayed in her complaint/protest that the
promotions of respondents Rumbaoa and Teves be recalled
and that they be disallowed from occupying, in acting
capacity, the positions to which they were designated.
In their answer, respondents Benzon and Sibug asserted that
the evaluation of the qualifications of the teachers considered
for promotion was made by a Division Section/Board of
Promotions in accordance with Section 9,3 Rule VI, Omnibus
Rules Implementing Book V of Executive Order No. 2924 and
other pertinent Civil Service Laws, and that the qualifications
of each applicant was juxtaposed vis - à-vis the qualification
standards provided for in Sections 1 up to 7,5 Rule IV of the
same omnibus rules.chanrobles virtual law
library Respondents Benzon and Sibug maintained that all
the standards and procedures were complied with by the said
Board of Promotions, which found petitioner Tapispisan
"wanting of qualification for the position of Head Teacher or
Principal."
For her part, respondent Rumbaoa averred that she was
already promoted as Elementary School Head Teacher III on
March 15, 1995 and subsequently re-assigned as OIC-Head
Teacher of P. Villanueva Elementary School on May 30, 1995.
Even with the new assignment, she retains the position of
Elementary School Head Teacher III assigned at Villamor Air
Base Elementary School. The head of P. Villanueva
Elementary School is a Head Teacher, not a principal. Hence,
her assignment thereat is not a promotion since it does not
involve an increase in rank and salary.
On the other hand, respondent Teves averred that she was
promoted as Master Teacher II way back in 1987. Thereafter,
when the principal of Don Carlos Elementary School was on
leave or assigned to other missions, respondent Teves would
be designated OIC thereof. The head of the said school is
Principal I, which is lower in salary than that of Master
Teacher II at Villamor Air Base Elementary School, which
position she still holds.
After evaluating the arguments of the parties, then Secretary
of the DECS Hon. Ricardo T. Gloria issued the Order dated
April 10, 1996 dismissing the complaint/protest as he found
the appointment of respondents Rumbaoa and Teves as Head
Teacher III and Master Teacher II, respectively, as well as
their subsequent designation as OIC-Head Teacher and OIC-
Principal, respectively, to be in order.
Secretary Gloria based his conclusion on the findings that,
with respect to respondent Teves, she was appointed Master
Teacher II effective February 18, 1987. This appointment
had been attested by the CSC; hence, such final and
completed promotional appointment could no longer be the
subject of protest nor set aside by recall. The bases of her
appointment as Master Teacher II were respondent Teves'
Performance Efficiency Ratings, which had been
"OUTSTANDING" for the last five consecutive years, and the
several awards conferred on her by civic organizations,
including Outstanding Teacher of Pasay City in 1993. Also,
the DECS Division authorities obviously had trust and
confidence in respondent Teves' competence and dedication
as shown by the fact that they would designate her as OIC of
Don Carlos Elementary School when its former principal was
on leave or on assignment elsewhere. It was emphasized
that respondent Teves' designation as OIC-Principal of Don
Carlos Elementary School was of temporary nature, not a
permanent movement from Villamor Air Base Elementary
School nor a promotion. Being temporary, it may be recalled
any time.
Secretary Gloria found that, with respect to respondent
Rumbaoa, she was appointed as Elementary School Head
Teacher III on March 15, 1995, which appointment was
attested by the CSC. As such, it had become complete and
final, which could no longer be a subject of belated protest or
withdrawn by recall.
Respondent Rumbaoa's appointment as Elementary School
Head Teacher III was based on her Performance Efficiency
Ratings, which had been "OUTSTANDING" for the last four
consecutive years (1991-1995), and her being recipient of
several achievement awards for teaching excellence at
Villamor Air Base Elementary School. It was also noted that
respondent Rumbaoa ranked No. 2 in the Division List of
Promotables for the school year 1993-1994, where she
earned a total score of 63.19 while petitioner Tapispisan
obtained 53.38. Thus, even if the following school year
(1994-1995) petitioner Tapispisan ranked No. 4 in the
qualifying examination, the same did not affect the rank of
respondent Rumbaoa earned the previous year.
Secretary Gloria further observed that the appointment of
respondent Rumbaoa as Elementary School Head Teacher III
on March 15, 1995 took place prior to the holding of the
qualifying examination where petitioner Tapispisan ranked
No. 4. Therefore, respondent Rumbaoa no longer had to take
the said examination having already been appointed
Elementary School Head Teacher III prior thereto. Besides,
performance ratings, outstanding accomplishments,
experience and specialized education and training comprise
ninety percent (90%) of the whole ranking process. On the
other hand, the written examination is only one of the factors
considered to determine the person's fitness for the position.
It was stressed by Secretary Gloria that respondent
Rumbaoa's designation as OIC-Head Teacher of P. Villanueva
Elementary School was merely temporary, not a permanent
transfer nor a promotion. Further, it did not remove her from
her incumbent position as Head Teacher III at the Villamor
Air Base Elementary School.
Secretary Gloria concluded in the dispositive portion of the
April 10, 1996 Order that:
IN VIEW of the foregoing disquisitions, the complaint/protest
against the illegal and indiscriminate appointment and
promotion of Mesdames Aida M. Rumbaoa and Myrna M.
Teves, Villamor Air Base Elementary School, Pasay City,
belatedly filed by Mr[s]. Librada D. Tapispisan, is hereby
DISMISSED for having already prescribed and for lack of
merit.6
Forthwith, petitioner Tapispisan elevated the case to the CSC
where, in addition to her allegation that she was more
qualified than respondents Rumbaoa and Teves as their
names did not appear in the 1994-1995 Division List of
Promotables, the petitioner, likewise, contended that their
designation as OIC-Head Teacher and OIC-Principal,
respectively, was made in violation of the ban on
appointments and promotions during election period.
In its Resolution No. 972501 dated April 14, 1997, the CSC
dismissed petitioner Tapispisan's protest holding:
The protest must fail. Only appointments/promotions and not
designation can be the subject of a protest. Designation,
being temporary in nature, does not amount to the issuance
of an appointment, but is a mere imposition of additional
duties. In the case of Martinez, Estrella V. (CSC Resolution
No. 95-3512), the Commission ruled as follows:
Obviously, Martinez had failed to distinguish between
promotional appointment and designation or reassignment
order. The latter merely requires performance of additional
duties and responsibilities. A promotional appointment may
be the subject of a protest but a designation or reassignment
can be questioned only by the person so reassigned.
There being no appointment issued that can be subject of a
protest, the instant protest must be dismissed.
WHEREFORE, the protest of Librada D. Tapispisan is hereby
dismissed.7
Petitioner Tapispisan sought reconsideration thereof but her
motion was denied for lack of merit by the CSC in its
Resolution No. 973698 dated August 28, 1997 which stated
in part:
After a careful evaluation of the instant motion for
reconsideration, the Commission finds no merit therein.
Tapispisan failed to submit any legal or factual reason which
would warrant the modification or reversal of CSC Resolution
No. 972501. On the other hand, Tapispisan actually affirmed
that there was no promotional appointments issued but
Rumbaoa and Teves were merely issued temporary
designations.
If it is true that there is the intention of the DECS to promote
the protestees to their present assignments, then, Tapispisan
must wait until the appointments are actually issued.
Otherwise, a protest at this time is premature.
On the question of the earlier promotion of Rumbaoa to the
position of Head Teacher III which Tapispisan raised in her
motion for reconsideration, the same should be dismissed
outright. The appointment was supposed to have become
effective on 15 March 1995. If Tapispisan failed to question
said appointment at the time it was issued then it has
become final; hence, can no longer be the subject of protest.
Furthermore, other than her bare allegations, Tapispisan
failed to submit evidence to support her charges of violation
of the election ban.
WHEREFORE, the motion for reconsideration filed by Librada
Tapispisan is hereby denied. Accordingly, CSC Resolution No.
97-2501 stands.8
Undaunted, petitioner Tapispisan filed with the CA a Petition
for Certiorari seeking to annul and set aside the foregoing
resolutions of the CSC.
In the assailed Decision dated December 12, 2002, the
appellate court dismissed the petition. It found that
respondents Rumbaoa and Teves were merely designated in
acting capacity to their respective positions. This designation
thus could not be subject of a protest because, under Civil
Service laws, only appointments and promotions can be
subject of a protest. In the same vein, such designation
could not have been a prohibited act during the election
period because the ban only covers transfer of civil service
officers or employees or new appointments, promotions or
giving salary increases.
Regarding the appointment of respondent Rumbaoa as Head
Teacher III, the CA held that it was already too late in the
day for the petitioner to contest the same. Such appointment
was made effective on March 15, 1995 but it was only on
December 11, 1995, or some eight months later, that
petitioner Tapispisan filed her complaint/protest with the
DECS. The appellate court affirmed the finding of respondent
DECS Secretary that respondent Rumbaoa possessed the
necessary qualifications for the position of Head Teacher III.
The CA also noted that petitioner Tapispisan did not raise the
issue about respondent Rumbaoa's appointment as Head
Teacher III in her complaint filed with the DECS Secretary
but that the issue surfaced only when she sought the
reconsideration of CSC Resolution No. 972501. An issue not
previously raised below may not be raised for the first time
on appeal.
Petitioner Tapispisan filed a motion for reconsideration of the
appellate court's decision but, in the assailed Resolution
dated April 10, 2003, it was denied as the arguments therein
were mere rehash of the same arguments raised in the
petition and which had already been passed upon and
addressed at length by the appellate court in its decision.
Hence, petitioner Tapispisan's recourse to this Court alleging
that:
I
Respondent Court of Appeals committed serious error when
it upheld the findings of the Civil Service Commission that
protest will not lie in absence of appointment/promotion.
II
Respondent Court of Appeals committed serious error when
it upheld the findings of the Civil Service Commission that
the protest was filed out of time.
III
Respondent Court of Appeals committed serious error when
it did not rule that the Transfer/Designation of respondents
R[u]mbaoa and Teves made pursuant to the May 30, 199[5]
Division Memorandum No. 33 were violative of COMELEC
Resolution No. 2731 which expressly bans the transfer of
officers and employees in the civil service during the election
period designated from January 8, 1995 to June 7, 1995.9
The petition must fail.
Before addressing the issues raised by petitioner Tapispisan,
it must be emphasized that prior to their designation,
respondents Rumbaoa and Teves had been appointed as
Head Teacher III and Master Teacher II, respectively. In his
Order dated April 10, 1996, Secretary Gloria found these
appointments to be in order. In particular, the appointment
of respondent Teves as Master Teacher II was upheld, thus:
[W]e find that there was basis for her [respondent Myrna
Teves] promotion to Master Teacher II, effective February
18, 1987, as shown by her Performance Efficiency Ratings,
which have always been OUTSTANDING for five consecutive
years, the several awards conferred upon her by civic
organizations, the most significant one being the Outstanding
Teacher of Pasay City in 1993, and more importantly, the
recognition, trust and confidence reposed upon her by the
DECS Division authorities in her competence and dedication
as head of school through the designations given to be the
OIC of another school when its head is on leave or on
assignment elsewhere.10
Respondent Rumbaoa's appointment as Head Teacher III on
March 15, 1995 was similarly upheld by Secretary Gloria,
thus:
As basis for her promotion, it is shown that the Performance
Efficiency Ratings of respondent Rumbaoa for four
consecutive school years, 1991-1995, were all
OUTSTANDING, besides being recipient of several
achievement awards for teaching excellence at the Villamor
Air Base Elementary School. More so, respondent Rumbaoa
ranked No. 2 in the Ranked List of Promotables for the school
year 1993-1994, and the total points earned by her is 63.19
while that of complainant Tapispisan, for the same school
year is only 53.38. Thus, even if the following school year,
complainant Tapispisan ranked No. 4 in the Ranked List of
Promotables, the same will not reduce or lessen the rank of
respondent Rumbaoa already earned the previous year.
More importantly, respondent Rumbaoa, taking into
consideration her leading rank for promotables for the school
year 1993-1994, and the other qualifications and
achievements had already been promoted Elementary School
[Head] Teacher III on March 15, 1995 prior to the holding of
the qualifying examinations wherein complainant Tapispisan
ranked No. 4. Therefore, there was no need for her to take
the examination, having been already promoted to
Elementary School [Head] Teacher III.11
The appointing power is vested in the Department
Head/Secretary.12 Such power, however, may be delegated
to the regional director subject to the approval, revision,
modification and reversal of the Department Secretary.13 It is
not disputed that the appointments of respondents Rumbaoa
and Teves as Head Teacher III and Master Teacher II,
respectively, had been made by the appropriate appointing
authority. Further, such appointments were duly attested by
the CSC, which, under the Constitution, is the central
personnel agency of the government charged with the duty
of determining questions of qualifications of merit and fitness
of those appointed to the civil service.14 The appointing
officer and the CSC acting together, though not concurrently
but consecutively, make an appointment
complete.15 Accordingly, the appointments of respondents
Rumbaoa and Teves as Head Teacher III and Master Teacher
II, respectively, are entitled to respect by the Court:
'[I]n the appointment or promotion of employees, the
appointing authority considers not only their civil service
eligibilities but also their performance, education, work
experience, trainings and seminars attended, agency
examinations and seniority. Consequently, the appointing
authority has the right of choice which he may exercise
freely according to his best judgment, deciding for himself
who is best qualified among those who have the necessary
qualifications and eligibilities. The final choice of the
appointing authority should be respected and left
undisturbed. Judges should not substitute their judgment for
that of the appointing authority.16
The Court shall now address the contentions of petitioner
Tapispisan regarding the designation of respondent Rumbaoa
as OIC-Head Teacher of P. Villanueva Elementary School and
respondent Teves as OIC-Principal of Don Carlos Elementary
School. Petitioner Tapispisan insists that they are not
qualified for the said positions contending that their names
were not included in the 1994 Division List of Promotables
because they obtained failing marks in the qualifying
examination conducted for the school year 1994-1995.
Moreover, while their designation appears to be temporary in
nature, the intent to permanently appoint them to their
respective assignments could be inferred from the tenor of
Division Memorandum No. 33.
Petitioner Tapispisan's arguments fail to persuade. As
correctly held by the CA, it can be gleaned from the following
rules of the CSC that only appointments or promotions can
be subject of a protest:
Sec. 40. Who and Where a Protest May Be Filed. - A qualified
next-in-rank employee may file his protest with the
Commission or any of its Regional Offices where the
protested appointment was acted upon, against such
appointment made in favor of another if he is not satisfied
with the written special reason or reasons given by the
appointing authority for such appointment.
To be considered as a "qualified next-in-rank" the employee
should have been appointed permanent to a position
previously determined to be next-in-rank, and should meet
the requirements for appointment thereto as previously
determined by the appointing authority and approved by the
Commission.
Sec. 42. When to File Protest. - The protest may be filed with
the Civil Service Commission within fifteen (15) days from
notice by the protestant of the issuance of the appointment
or promotion. The protestant shall furnish the appointing
authority or the office concerned a copy of his protest and
submit to the Commission proof of service thereof.
Sec. 47. Dismissal of Protest. - A protest shall be dismissed
on any of the following grounds:
(d) No appointment has actually been issued to the protestee
- .17
The CSC, in its Resolution No. 972501 dated April 14, 1997
dismissing petitioner Tapispisan's protest, declared that "only
appointments/promotions and not designation can be the
subject of a protest. Designation, being temporary in nature,
does not amount to the issuance of an appointment, but is a
mere imposition of additional duties."18 This construction
given by the CSC should be given great weight and respect.
As this Court has time and again ruled: "[a]lthough
technically not binding and controlling on the courts, the
construction given by the agency or entity charged with the
enforcement of a statute should be given great weight and
respect, particularly so if such construction - has been
observed and acted on for a long period of time."19
Indeed, there is a marked difference between
an appointment and a designation. The Court had the
occasion to expound the distinction in this wise:
Appointment may be defined as the selection, by the
authority vested with the power, of an individual who is to
exercise the functions of a given office. When completed,
usually with its confirmation, the appointment results in
security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office.
Designation, on the other hand, connotes merely the
imposition by law of additional duties of an incumbent official
- . It is said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment
because it, likewise, involves the naming of a particular
person to a specified public office. That is the common
understanding of the term. However, where the person is
merely designated and not appointed, the implication is that
he shall hold the office only in a temporary capacity and may
be replaced at will by the appointing authority. In this sense,
the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the
person named.20
The designation of respondent Rumbaoa as OIC-Head
Teacher of P. Villanueva Elementary School and respondent
Teves as OIC-Principal of Don Carlos Elementary School
merely imposed on them additional duties on top of those
corresponding to their incumbent positions at Villamor Air
Base Elementary School. Such designation did not confer
upon them security of tenure in the positions which they
occupy in "acting" capacity. This point was underscored by
Secretary Gloria as he explained that the designation of
respondents Rumbaoa and Teves as OIC-Head Teacher and
OIC-Principal, respectively, was temporary in nature, not a
permanent transfer nor a promotion.
As a corollary, such designation did not violate Resolution
No. 2731 dated December 5, 1994 of the Commission on
Elections, which declared as a prohibited act the transfer of
officers and employees in the civil service during the election
period from January 8, 1995 up to June 7, 1995. Transfer is
defined as "a movement from one position to another which
is of equivalent rank, level or salary without break in service
involving the issuance of an appointment."21 The designation
of respondents Rumbaoa and Teves did not involve a
movement from one position to another. Neither did it
involve the issuance of any appointment to the said positions
in their favor. In fact, respondents Rumbaoa and Teves
retained their incumbent positions at the Villamor Air Base
Elementary School. As such, their designation could not be
considered as a "transfer" within the meaning of a prohibited
act during the election period.
Even granting arguendo that a protest may be properly
lodged against a designation, petitioner Tapispisan's protest
against the designation of respondents Rumbaoa and Teves
on the ground that she is more qualified must still fail. In her
4th Indorsement22 dated August 10, 1995, respondent
Benzon, as Principal IV, Coordinating Principal of the South
District, clarified that respondent Teves was considered for
designation as OIC-Principal of Don Carlos Elementary School
because of her orientation and training. Aside from occupying
the position of Master Teacher II, respondent Teves carried
with her three years of work experience as officer-in-charge
of the same school. Respondent Benzon, likewise, justified
the designation of respondent Rumbaoa as OIC-Head
Teacher of P. Villanueva Elementary School stating that she
was qualified therefor having been duly appointed Head
Teacher III effective March 15, 1995. Further, she ranked
No. 2 in the Division List of Promotables for the school year
1993-1994.
Respondent Benzon's explanations were well taken by
respondent Sibug, Schools Division Superintendent, in his
5th Indorsement23 dated August 15, 1995 and by respondent
Rosas, Regional Director of the DECS for NCR in his 6th
Indorsement24 dated September 1, 1995, as both officials
recommended the dismissal of petitioner Tapispisan's
protest. As stated earlier, in his Order dated April 10, 1996,
Secretary Gloria did dismiss petitioner Tapispisan's protest.
Clearly, the designation of respondents Rumbaoa and Teves
was well within the prerogative of the said respondents DECS
officials. It behooves the Court to refrain from unduly
interfering with the exercise of such administrative
prerogative. After all, it is well settled that administrative
decisions on matters within the jurisdiction of administrative
bodies are entitled to respect and can only be set aside on
proof of grave abuse of discretion, fraud or error of
law.25 None of these vices has been shown as having
attended the designation of respondents Rumbaoa and
Teves.
Considering the foregoing disquisition, the Court no longer
finds it necessary to resolve the issue relating to the
timeliness of petitioner Tapispisan's protest.
In fine, the appellate court committed no reversible error
when it affirmed the resolutions of the CSC dismissing the
protest filed by petitioner Tapispisan and upholding the
designation of respondent Rumbaoa as OIC-Head Teacher of
P. Villanueva Elementary School and respondent Teves as
OIC-Principal of Don Carlos Elementary School.
WHEREFORE, the petition is DENIED. The Decision dated
December 12, 2002 and Resolution dated April 10, 2003 of
the Court of Appeals in CA-G.R. SP No. 45485
are AFFIRMED in toto.
SO ORDERED.
18. Classes of Positions in the Career Service
[G.R. NO. 163573 July 27, 2005]
LEONORA B. IGNACIO, Petitioners, v. CIVIL SERVICE
COMMISSION, UNDERSECRETARY RAMON C. BACANI,
ARD-OIC DIRECTOR IV PARALUMAN G.
GIRON, Respondents.
DECISION
CALLEJO, SR., J.:
Petitioner Dr. Leonora B. Ignacio was the Division
Superintendent of Public Schools in Cavite City. She went on
leave from May 6 to May 17, 2002. On May 2, 2002, the
Secretary of the Department of Education, Culture and
Sports (DECS), through former Undersecretary Ramon C.
Bacani, issued an Order1 reassigning her to the Division of
Schools in Puerto Princesa City effective immediately.
Regional Director Paraluman R. Giron forwarded the
reassignment letter to Dr. Ignacio through a Letter2 dated
May 6, 2002. However, on May 10, 2002, Undersecretary
Bacani issued a Memorandum3 to Regional Director Giron
directing her to hold Dr. Ignacio's reassignment in abeyance
until further orders from his office. Dr. Giron then informed
Dr. Ignacio of Undersecretary Bacani's directive via  a
Letter4 dated May 13, 2002.
However, the next day, May 14, 2002, Undersecretary
Bacani again wrote to Dr. Giron, reiterating Dr. Ignacio's
reassignment as Superintendent of the Division of Public
Schools of Puerto Princesa City with Dr. Alma Bella O.
Bautista as the designated Schools Division Superintendent
of Cavite City.5 In a Letter6 dated May 21, 2002, Dr. Giron
informed Dr. Ignacio of Undersecretary Bacani's directive and
enjoined her to comply therewith. Instead of complying with
the directive, however, Dr. Ignacio filed a petition for its
nullification with the Regional Office of the Civil Service
Commission (CSC). Considering that the petitioner was a
presidential appointee, the petition was transmitted to the
CSC for resolution.
The petitioner alleged that her reassignment to Puerto
Princesa City was arbitrary, oppressive and contrary to law.
Being a presidential appointee with Career Executive Service
(CES) Rank V eligibility, only the President, through the
DECS Secretary, could reappoint her, and such authority
could not be delegated to an Undersecretary. She further
alleged that her reassignment was a demotion, and as such
prejudicial to her for the following reasons: (a) Cavite is a
Class A province, while Puerto Princesa City is a Class D city;
(b) Puerto Princesa City is the farthest schools division in the
country, while Cavite is her home province; and (c) as Cavite
Schools Division Superintendent, she had 8,490 teachers,
excluding non-teaching personnel, under her supervision,
whereas, in Puerto Princesa City, she had only 750 teachers
under her.
According to the petitioner, her reassignment violated the
following rules and laws: (a) DECS Order No. 7, Series of
1994, since the National Search Committee was not
consulted on her reassignment; (b) Republic Act No.
4670,7 considering that she did not consent to her
reassignment; and (c) the Rules of the Commission on
Elections and of the CSC banning reassignment of personnel,
in connection with the July 12, 2002 Barangay Elections. The
petitioner further alleged that her reassignment was
politically motivated, as shown by the letter of Governor
Ireneo Maliksi to the officers and employees of Cavite City.
She pointed out that her replacement was facing
administrative charges with the DECS and the Ombudsman;
hence, could not be issued the necessary clearance for
reassignment to Cavite.
On November 27, 2003, the CSC issued Resolution No.
0311798 dismissing Dr. Ignacio's petition. It held that
Undersecretary Bacani signed the reassignment order for and
in behalf of the DECS Secretary and is, thus, presumed to
have been authorized by the latter to issue such order. The
Commission further stated that when Rep. Act No. 4670 took
effect, the positions of Schools Division Superintendent and
Assistant Schools Division Superintendent were not yet
classified as CES positions; thus, the provisions of
Presidential Decree No. 1, specifically on assignments,
reassignments and transfers, should govern. The
Commission cited Section 6(a) of CSC Memorandum Circular
No. 40, Series of 1998, and ruled that the position of Schools
Division Superintendent has CES classification; hence, such
Career Executive Service Officer (CESO) may be reassigned
or transferred from one station to another, as long as the
reassignment or transfer is made in the interest of public
service and involves no reduction in rank, salary or status.
The CSC also held that the petitioner's reassignment to
Puerto Princesa City was not a demotion because she
retained the same position and rank, as well as the same
salary rate and allowances. Besides'
The said reassignment should serve as a challenge to Dr.
Ignacio to impart her knowledge and skills to upgrade the
so-called Class D Division of Puerto Princesa City to a Class A
Division. The fact that Puerto Princesa is far from her
residence does not also make the reassignment illegal nor
does it constitute constructive dismissal. Her reassignment is
regular and made in the interest of public service as
determined by the Secretary taking into account the
exigencies of the service.9
The CSC further held that contrary to the allegations of the
petitioner, the National Search Committee and the DECS
Regional Director were consulted prior to her reassignment;
however, its findings and recommendation are merely
recommendatory, and the DECS Secretary is not bound
thereby. Moreover, the reassignment was made on May 14,
2002, prior to the effectivity of the period prohibiting the
reassignment of personnel during the 2002 Barangay
Election (from May 31, 2002 to July 30, 2002).
As to the allegation that the reassignment was politically
motivated (referring to Governor Maliksi's letter to the
provincial government personnel), the CSC ruled as follows:
Such statement by Governor Maliksi asking somebody to
support the administration of the newly-assigned Schools
Division Superintendent in the City of Cavite under the
circumstances above described cannot be considered political
interference. At most, Governor Maliksi's statement is merely
an expression of approval to the DepEd's program of
regularly reshuffling its managerial personnel especially
those assigned in their respective station for a considerable
period of time, such as Ignacio.10
The petitioner received a copy of the CSC Resolution on
December 5, 2003, and had until December 20, 2003 within
which to file a Petition for Review thereof in the Court of
Appeals (CA). She failed to file her petition. Instead, on
February 2, 2004, the petitioner filed before the appellate
court a motion for extension of time of fifteen days to file a
Petition for Certiorari, which the latter granted, conditioned
on the timeliness of the petition.
On February 10, 2004, the petitioner filed a Petition
for Certiorari under Rule 65 of the Rules of Court, assailing
the CSC resolution and
reiterating therein the same grounds and arguments she
raised in her appeal to the CSC.
In a Resolution issued on March 15, 2004, the appellate
court dismissed the petition, on its finding that the
petitioner's remedy was to file a Petition for Review under
Rule 43, and not a Petition for Certiorari under Rule 65 of the
Rules of Court; in any event, the petition cannot be
considered as a Petition for Review , having been filed
beyond the 15-day period therefor.
The petitioner filed a motion for reconsideration of the CA
Resolution, contending that the CSC committed a grave
abuse of its discretion amounting to excess or lack of
jurisdiction, since the proper remedy in the instant case was
a Petition for Certiorari and not merely a Petition for Review .
The CA denied her motion.
This prompted the petitioner to file the present Petition for
Review on Certiorariunder Rule 45, raising the same issues
and restating her complaint before the CSC, as well as in her
petition with the appellate court.
In its comment on the petition, the CSC, through the OSG,
asserts that the assailed Resolution was in accord with law,
and that under Rule 43 of the Rules of Court, the said
resolution had become final and executory. The OSG
maintains that since the petitioner had been dropped from
the rolls for having been absent without leave effective
February 1, 2003 and that the President had appointed
Veranda S. Atienza as the petitioner's replacement, the
instant petition had been rendered moot and academic.
The petition is denied for lack of merit.
First. The assailed Resolution of the CA is correct. The
remedy of an aggrieved party from a resolution issued by the
CSC is to file a Petition for Review thereof under Rule 43 of
the Rules of Court within fifteen days from notice of the
resolution.11 Such failure to appeal in accordance with the
Rules of Court rendered the assailed CSC resolution final and
executory.
Second. Section 12, Rule 43 of the Rules of Court, provides
that an appeal to the CA does not stay the assailed
resolution.12
Third. The petition has become moot and academic, since
the petitioner was dropped from the rolls, and her
replacement already appointed.
Fourth. In any event, even an examination of the merits of
the petition constrains the Court to conclude that it is
destined to fail.
The petitioner was a member of the CES with a rank of CESO
V; as such, her security of tenure pertains only to
her  rank  and not to her office or her position. The security
of tenure of employees in the career executive service
(except first and second-level employees in the civil service),
pertains only to rank and not to the office  or to the
position to which they may be appointed. Thus, a CESO may
be transferred or reassigned from one position to another
without losing his rank which follows him wherever he is
transferred or reassigned. In fact, a CESO suffers no
diminution of salary even if assigned to a CES position with
lower salary grade, as the compensation is according to CES
rank and not on the basis of the position or office occupied.13
In the leading case of Cuevas v. Bacal,14 the Court ruled that
a CESO may be reassigned or transferred from one position
to another, in the interest of the service; such an
assignment, however, shall not result in reduction in rank or
compensation. In that case, the controversy centered on the
title of Chief Public Attorney in the Public Attorney's Office,
which requires a CES Rank Level 1. The claimant, respondent
Atty. Josefina Bacal, who possessed a CESO III rank, was
appointed as such in February 1998 by then President Fidel
V. Ramos. In July 1998, she was transferred and appointed
Regional Director. President Joseph E. Estrada designated in
her stead Atty. Carina J.
Demaisip as Chief Public Defender. Since Demaisip was not
CES eligible, Bacal filed a quo warranto suit before the CA,
questioning the appointment. The CA rendered judgment in
Bacal's favor which, however, this Court reversed.
While the instant case is not on all fours with Cuevas,
the rationale behind the said decision is applicable, thus:
'Within the Career Executive Service, personnel can be
shifted from one office or position to another without
violation of their right to security of tenure because
their status and salaries are based on their ranks and
not on their jobs. To understand this, it is necessary to
consider the reason for the creation of the Career Executive
Service.
R.A. No. 5435, as amended by R.A. Nos. 6076, 6172, and
6175, created a commission charged with the specific
function of reorganizing the government "to promote
simplicity, economy, and efficiency" in its operations. The
result was the preparation of the Integrated Reorganization
Plan which was adopted and declared part of the law of the
land by P.D. No. 1 on September 24, 1972. A major feature
of the Integrated Reorganization Plan was the creation of the
Career Executive Service whose justification was explained
by the Commission on Reorganization, thus:
The present Civil Service system is not geared to meet the
executive manpower needs of the government. The filling of
higher administrative positions is often based on
considerations other than merit and demonstrated
competence. The area of promotion is currently confined to
the person or persons "next-in-rank" in the agency.
Moreover, personnel classification and compensation are
uniformly based on concepts and procedures which are
suited to positions in the lower levels but not to managerial
posts in the higher levels. To fill this crucial gap, it is
recommended that a Career Executive Service be
established. This group of senior administrators shall be
carefully selected on the basis of high qualifications and
competence. Skilled in both techniques and processes of
management, these career executives will act as catalysts for
administrative efficiency and as agents of administrative
innovation.
The status and salary of the career executives will be based
on their rank, and not on the job that they occupy at any
given time . . . In this sense, the rank status of the Career
Executive Service is similar to that of the commissioned
officers in the Armed Forces or members of the Foreign
Service. Unlike these latter organizations, however, entrance
to the Career Executive Service will not be generally at an
early age in a relatively junior level but at a senior
management level.
The rank classification in the Service will allow for mobility or
flexibility of assignments such that the government could
utilize the services or special talents of these career
executives wherever they are most needed or will likely
create the greatest impact. This feature is especially relevant
in a developing country which cannot afford to have its
scarce executive manpower pegged to particular positions.
Mobility and flexibility in the assignment of personnel,
the better to cope with the exigencies of public
service, is thus the distinguishing feature of the Career
Executive Service. To attain this objective, the Integrated
Reorganization Plan provides:
e. Assignments, Reassignments and Transferees ...
Any provision of law to the contrary notwithstanding,
members of the Career Executive Service may be
reassigned or transferred from one position to another
and from one department, bureau or office to another;
provided that such reassignment or transfer is made in
the interest of public service and involves no reduction
in rank or salary; provided, further, that no member
shall be reassigned or transferred oftener than every
two years; and provided, furthermore, that if the
officer concerned believes that his reassignment or
transfer is not justified, he may appeal his case to the
President.
The implementing rules and regulations of the CES Board
provide:
Salary of Career Executive Service Officers. - A CESO is
compensated according to his CES rank and not on the
basis of the CES position he occupies. However, if a
CESO is assigned to a CES position with a higher salary
grade than that of his CES rank, he is allowed to
receive the salary of the CES position.
Should he be assigned or made to occupy a CES position
with a lower salary grade, he shall continue to be paid the
salary attached to his CES rank.
Petitioners are, therefore, right in arguing that
respondent, "as a CESO, can be reassigned from one
CES position to another and from one department,
bureau or office to another. Further, respondent, as a
CESO, can even be assigned or made to occupy a CES
position with a lower salary grade. In the instant case,
respondent, who holds a CES Rank III, was correctly
and properly appointed by the appointing authority to
the position of Regional Director, a position which has
a corresponding CES Rank Level III.15
This doctrine was re-echoed in General v. Roco,16 where this
Court ruled as follows:
Moreover, under the mobility and flexibility principles of the
Integrated Reorganization Plan, CES personnel may
be reassigned or transferred from one position to another,
thus:
6. Assignments, Reassignments and Transferees ...
Any provision of law to the contrary notwithstanding,
members of the Career Executive Service may be reassigned
or transferred from one position to another and from one
department, bureau or office to another; provided that such
reassignment or transfer is made in the interest of public
service and involves no reduction in rank or salary; provided,
further, that no member shall be reassigned or transferred
oftener than every two years; and provided, furthermore,
that if the officer concerned believes that his reassignment or
transfer is not justified he may appeal his case to the
President.
WHEREFORE, the instant petition is DENIED for lack of
merit. The Resolutions of the Court of Appeals in CA-G.R. SP
No. 81957, dated March 15, 2004 and May 14, 2004,
are AFFIRMED.
SO ORDERED.