SECTION 2-6

G.R. No. 191672 November 25, 2014

DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, CIVIL SERVICE COMMISSION, FRANCISCO T. DUQUE III, EXECUTIVE
SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT, Respondents.

DECISION

BERSAMIN, J.:

The independence of the Civil Service Commission (CSC) is explicitly mandated under Section
1,1 Article IX-A of the 1987 Constitution. Additionally, Section 2,2 Article IX-A of the 1987
Constitution prohibits its Members, during their tenure, from holding any other office or
employment.

These constitutional provisions3 are central to this special civil action for certiorari and prohibition
brought to assail the designation of Hon. Francisco T. Duque III, Chairman of the CSC, as a
member of the Board of Directors or Trustees in an ex officio capacity of the (a) Government
Service Insurance System (GSIS); (b) Philippine Health Insurance Corporation (PHILHEALTH),
(c) the Employees Compensation Commission (ECC), and (d) the Home Development Mutual
Fund (HDMF).

Antecedents

On January 11, 2010, then President Gloria Macapagal-Arroyo appointed Duque as Chairman of
the CSC. The Commission on Appointments confirmed Duque’s appointment on February 3,
2010.

On February 22, 2010,President Arroyo issued Executive Order No. 864 (EO 864), whose
complete text is quoted as follows:

EXECUTIVE ORDER NO. 864

INCLUSION OF THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION IN THE BOARD OF

TRUSTEES/DIRECTORS OF THE GOVERNMENT SERVICE INSURANCE SYSTEM,
PHILIPPINE HEALTH INSURANCE CORPORATION, EMPLOYEES’ COMPENSATION
COMMISSION AND THE HOME DEVELOPMENT MUTUAL FUND

WHEREAS, Section 2 (1), Article IX-B of the 1987 Philippine Constitution provides that the civil
service embraces all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters;

WHEREAS, Section 3, Article IX-B of the 1987 Constitution mandates, among others, that the
Civil Service Commission (CSC), as the central personnel agency of the government, shall
establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service, and shall strengthen the merit
and rewards system, integrate all human resources development programs for all levels and
ranks, and institutionalize a management climate conducive to public accountability; WHEREAS,
Section 14, Chapter 3, Title I-A, Book V of the Administrative Code of 1987 (Executive Order No.
292) expressly states that the Chairman of the CSC shall bea member of the Board of Directors
or of other governing bodies of government entities whose functions affect the career
development, employment, status, rights, privileges, and welfare of government officials and
employees, such as the Government Service Insurance System, Foreign Service Board, Foreign
Trade Service Board, National Board for Teachers, and such other similar boards as may be
created by law;

WHEREAS, Presidential Decree No. 1 dated September 24, 1972, explicitly empowers the
President of the Republic of the Philippines to reorganize the entire Executive Branch of the
National Government, as a vital and priority measure to effect the desired changes and reforms
in the social, economic and political structure of the country;

WHEREAS, Section 18 (a), ArticleIV of Republic Act No. 7875 (An Act Instituting a National
Health Insurance Program For All Filipinos and Establishing the Philippine Health Insurance
Corporation For The Purpose) or otherwise known as the "National Health Insurance Act of
1995", Section 42 (G) of Republic Act No. 8291 (An Act Amending Presidential Decree No. 1146,
as amended, Expanding and Increasing the Coverage of Benefits of the Government Service
Insurance System, Instituting Reforms Therein and For Other Purposes) or otherwise known as
"The Government Service Insurance System Act of 1997, Article 176, Chapter 3 of Presidential
Decree No. 626 (Employees’ Compensation and State Insurance Fund), and Presidential Decree
No. 1530 (Instituting a System of Voluntary Contributions for Housing Purpose[s]) or otherwise
known as the "Pag-ibig Fund" reveal that while the Chairman of the CSC is not included in the list
of those who could sit as a member of the Board of Directors of the Philhealth or of the Board of
Trustees of the GSIS, ECC and the Pag-ibig Fund, said laws did not expressly repeal Section 14,
Chapter 3, Title I-A, Book V of the Administrative Code of 1987 and Presidential Decree No. 1;
WHEREAS, it is settled that repeals by implication are not favored as laws are presumed to be
passed with deliberation and full knowledge of all laws existing on the subject;

WHEREAS, a scrutiny of the mandated functions and duties of the Board of Trustees of the
GSIS, ECC and HDMF and the Board of Directors of the PhilHealth shows that the same are all
geared towards the advancement of the welfare of government officials and employees, which
functions fall within the province of the CSC;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby order and direct:

Section 1. The Chairman of the Civil Service Commission shall sit as an Ex-Officio member of
the Board of Trustees of the Government Service Insurance System, Employees’ Compensation
Commission and the Home Development Mutual Fund and the Board of Directors of the
Philippine Health Insurance Corporation pursuant to Section 14, Chapter 3, Title I-A, Book V of
Executive Order No. 292 (Administrative Code of 1987).

Section 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 22nd day of February, in the year of Our Lord, Two Thousand
and Ten.4

Pursuant to EO 864, Duque was designated as a member of the Board of Directors or Trustees
of the following government-owned or government- controlled corporations (GOCCs): (a) GSIS;
(b) PHILHEALTH;(c) ECC; and (d) HDMF.

On April 8, 2010, petitioner Dennis A.B. Funa, in his capacity as taxpayer, concerned citizen and
lawyer, filed the instant petition challenging the constitutionality of EO 864, as well as Section 14,
Chapter 3, Title I-A, Book V of Executive Order No. 292 (EO 292), otherwise known as The
Administrative Code of 1987, and the designation of Duque as a member of the Board of
Directors or Trustees of the GSIS, PHIC, ECC and HDMF for being clear violations of Section 1
and Section 2, Article IX-A of the 1987 Constitution.
 The Case

The Court is confronted with the proper interpretation of Section 1 and Section 2, Article IX-A of
the 1987 Constitution and Section 14, Chapter 3, Title I-A, Book V of EO 292 to ascertain the
constitutionality of the designation of Duque, in an ex officio capacity, as Director or Trustee of
the GSIS, PHIC, ECC and HDMF.

Petitioner asserts that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292 violate the
independence of the CSC, which was constitutionally created to be protected from outside
influences and political pressures due to the significance of its government functions.5 He further
asserts that such independence is violated by the fact that the CSC is not a part of the Executive
Branch of Government while the concerned GOCCs are considered instrumentalities of the
Executive Branch of the Government.6 In this situation, the President may exercise his power of
control over the CSC considering that the GOCCs in which Duque sits as Board member are
attached to the Executive Department.7

Petitioner argues that Section 14, Chapter 3, Title I-A, Book V of EO 292 unduly and
unconstitutionally expands the role of the CSC, which is primarily centered on personnel-related
concerns involving government workers, to include insurance, housing and health matters of
employees in the government service.8 He observes that the independence of the CSC will not
be compromised if these matters are instead addressed by entering into a memorandum of
agreement or by issuing joint circulars with the concerned agencies, rather than allowing a
member of the CSC to sit as a member of the governing Boards of these agencies.9

Petitioner notes that the charters of the GSIS, PHILHEALTH, ECC and HDMF do not mention
that the CSC Chairman sits as a member of their governing Boards in an ex
officiocapacity.10 Such being the case, the President may not amend the charters, which are
enacted by Congress, by the mere issuance of an executive order.11

Petitioner posits that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292 violate the
prohibition imposed upon members of constitutional commissions from holding any other office or
employment.12 A conflict of interest may arise in the event that a Board decision of the GSIS,
PHILHEALTH, ECC and HDMF concerning personnel-related matters is elevated to the CSC
considering that such GOCCs have original charters, and their employees are governed by CSC
laws, rules and regulations.13

In their Comment, respondents maintain that Duque’s membership in the governing Boards of
the GSIS, PHILHEALTH, ECC and HDMF is constitutional. They explain that EO 864 and
Section 14, Chapter 3, Title IA, Book V of EO 292 preserve the independence of the CSC
considering that GOCCs with original charters such as the GSIS, PHILHEALTH, ECC and HDMF
are excluded from the supervision and control that secretaries and heads exercise over the
departments to which these GOCCs are attached.14 Ultimately, these GOCCs are exempted from
the executive control of the President.15

As to the matter of conflict of interest, respondents point out that Duque is just one member of
the CSC, or of the Boards of the GSIS, PHILHEALTH, ECC and HDMF, such that matters
resolved by these bodies may be resolved with or without Duque’s participation.16 Respondents
submit that the prohibition against holding any other office or employment under Section 2,
Article IX-A of the 1987 Constitution does not cover positions held without additional
compensation in ex officio capacities. Relying on the pronouncement in Civil Liberties Union v.
Executive Secretary,17 they assert that since the 1987 Constitution, which provides a stricter
prohibition against the holding of multiple offices by executive officials, allows them to hold
positions in ex officio capacities, the same rule is applicable to members of the Constitutional
Commissions.18 Moreover, the mandatory tenor of Section 14, Chapter 3, Title I-A, Book V of EO
292 clearly indicates that the CSC Chairman’s membership in the governing bodies mentioned
therein merely imposes additional duties and functions as an incident and necessary
consequence of his appointment as CSC Chairman.19

Respondents insist that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292, as well
as the charters of the GSIS, PHILHEALTH, ECC and HDMF, are consistent with each other.
While the charters of these GOCCs do not provide that CSC Chairman shall be a member of
their respective governing Boards, there islikewise no prohibition mentioned under said
charters.20 EO 864, issued in conformity with Section 14, Chapter 3, Title I-A, Book V of EO 292,
could not have impliedly amended the charters of the GSIS, PHILHEALTH, ECC and HDMF
because the former relates to the law on the CSC while the latter involve the creation and
incorporation of the respective GOCCs.21 As their subject matters differ from each other, the
enactment of the subsequent law is not deemed to repeal or amend the charters of the GOCCs,
being considered prior laws.22

Issue

Does the designation of Duque as member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF, in an ex officio capacity, impair the independence of the CSC
and violate the constitutional prohibition against the holding of dual or multiple offices for the
Members of the Constitutional Commissions?

Our Ruling

The Court partially grants the petition. The Court upholds the constitutionality of Section 14,
Chapter 3, Title I-A, Book V of EO 292, but declares unconstitutional EO 864 and the designation
of Duque in an ex officio capacity as a member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF.

1.

Requisites of judicial review

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have the standing to question the validity
of the subject act or issuance; otherwise stated, he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis motaof the case.23

Here, the Office of the Solicitor General (OSG) only disputes the locus standi of petitioner who
has filed this suit in his capacity as taxpayer, concerned citizen and lawyer.24 In view of the earlier
dispositions by the Court in similar public law cases initiated by petitioner, we again affirm his
locus standito bring a suit of this nature. In Funa v. Agra,25 the Court has recently held:

x x x [T]he locus standi of the petitioner as a taxpayer, a concerned citizen and a lawyer to bring
a suit ofthis nature has already been settled in his favor in rulings by the Court on several other
public law litigations he brought. In Funa v. Villar, for one, the Court has held:

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court has time and again acted liberally on
the locus standi requirements and has accorded certain individuals, not otherwise directly
injured, or with material interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The rule on locus standi is after all a mere
procedural technicality in relation to which the Court, in a catena of cases involving a subject of
transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may
not have been personally injured by the operation of a law or any other government act. In David,
the Court laid out the bare minimum norm before the so-called "non-traditional suitors" may be
extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of the election
law in question;

3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained of infringes
their prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to
institute the instant petition.20 (Bold emphasis supplied)

In Funa v. Ermita, the Court recognized the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.

The Court notes, however, that during the pendency of this petition, Duque’s designation as
Director or Trustee of the GSIS, PHILHEALTH, ECC and PHIC could have terminated or been
rendered invalid by the enactment of Republic Act No. 10149,26 thus causing this petition and the
main issue tendered herein moot and academic. Pertinent provisions of Republic Act No.10149,
which took effect on June 6, 2011, state:

SEC. 13. Number of Directors/Trustees.—The present number of Directors/Trustees provided in

the charter of the GOCCs shall be maintained.

SEC. 14. Ex Officio Alternates.—The ex officio members of the GOCC may designate their
respective alternates who shall be the officials next-in-rank to them and whose acts shall be
considered the acts of their principals.

SEC. 15. Appointment of the Board of Directors/Trustees of GOCCs.—An Appointive Director

shall be appointed by the President of the Philippines from a shortlist prepared by the GCG.

The GCG shall formulate its rules and criteria in the selection and nomination of prospective
appointees and shall cause the creation of search committees to achieve the same. All nominees
included in the list submitted by the GCG to the President shall meet the Fit and Proper Rule as
defined un this Act and such other qualifications which the GCG may determine taking into
consideration the unique requirements of each GOCC. The GCG shall ensure that the shortlist
shall exceed by at least fifty percent (50%) of the number of directors /trustees tobe appointed. In
the event that the President does not see fit to appoint any of the nominees included in the
shortlist, the President shall ask the GCG to submit additional nominees.

xxxx
SEC. 17. Term of Office.—Any provision in the charters of each GOCC to the contrary
notwithstanding, the term of office of each Appointive Director shall be for one(1) year, unless
sooner removed for cause: Provided, however,That the Appointive Director shall continue to hold
office until the successor is appointed. An Appointive Director may be nominated by the GCG for
reappointment by the President only if one obtains a performance score of above average or its
equivalent or higher in the immediately preceding year of tenure as Appointive Director based on
the performance criteria for Appointive Directors for the GOCC.

Appointed to any vacancy shall be only for the unexpired term of the predecessor. The
appointment of a director to fill such vacancy shall be in accordance with the manner provided in
Section 15 of this Act.

Any provision of law to the contrary notwithstanding, all incumbent CEOs and appointive
members of the Board of GOCCs shall, upon approval of this Act, have a term of office until June
30, 2011, unless sooner replaced by the President: Provided, however, That the incumbent
CEOs and appointive members of the Board shall continue in office until the successor have
been appointed by the President.

A moot and academic case is one thatceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.27

2.

Unconstitutionality of Duque’sdesignation as member

of the governing boards of the GSIS, PHIC, ECC and HDMF

Nonetheless, this Court has exercised its power of judicial review in cases otherwise rendered
moot and academic by supervening events on the basis of certain recognized exceptions,
namely: (1) there is a grave violation of the Constitution; (2) the case involves a situation of
exceptional character and is of paramount public interest; (3) the constitutional issue raised
requires the formulation of controlling principles to guide the Bench, the Bar and the public; and
(4) the case is capable of repetition yet evading review.28

The situation now obtaining definitely falls under the requirements for the review of a moot and
academic case. For the guidance of and as a restraint upon the future,29 the Court will not abstain
from exercising its power of judicial review, the cessation of the controversy notwithstanding. We
proceed to resolve the substantive issue concerning the constitutionality of Duque’s ex officio
designation as member of the Board of Directors or Trustees of the GSIS, PHILHEALTH, ECC
and HDMF.

The underlying principle for the resolution of the present controversy rests on the correct
application of Section 1 and Section 2, Article IX-A of the 1987 Constitution, which provide:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit.

Section 2. No Member of a Constitutional Commission shall, during his tenure, hold any other
office or employment. Neither shall he engage in the practice of any profession or in the active
management or control of any business which in any way may be affected by the functions of his
office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
Section 1, Article IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as "independent."Although their respective functions are essentially executive in
nature, they are not under the control of the President of the Philippines in the discharge of such
functions. Each of the Constitutional Commissions conducts its own proceedings under the
applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders
and rulings are subject only to review on certiorariby the Court as provided by Section 7, Article
IX-A of the 1987 Constitution.30 To safeguard the independence of these Commissions, the 1987
Constitution, among others,31 imposes under Section 2, Article IX-A of the Constitution certain
inhibitions and disqualifications upon the Chairmen and members to strengthen their integrity, to
wit:

(a) Holding any other office or employment during their tenure;

(b) Engaging in the practice of any profession;

(c) Engaging in the active management or control of any business which in any way may
be affected by the functions of his office; and

(d) Being financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its subdivisions, agencies or
instrumentalities, including government-owned or – controlled corporations or their
subsidiaries.32

The issue herein involves the first disqualification abovementioned, which is the disqualification
from holding any other office or employment during Duque’s tenure as Chairman of the CSC.
The Court finds it imperative to interpret this disqualification in relation to Section 7, paragraph
(2), Article IX-B of the Constitution and the Court’s pronouncement in Civil Liberties Union v.
Executive Secretary.

Section 7, paragraph (2),Article IX-B reads:

Section 7. x x x

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

In Funa v. Ermita,33 where petitioner challenged the concurrent appointment of Elena H. Bautista
as Undersecretary of the Department of Transportation and Communication and as Officer-in-
Charge of the Maritime Industry Authority, the Court reiterated the pronouncement in Civil
Liberties Union v.The Executive Secretary on the intent of the Framers on the foregoing provision
of the 1987 Constitution, to wit:

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

xxxx

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to bea
positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise
provided in this Constitution" must be given a literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2),Article VII; or acting as President in those instances
provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.34

Being an appointive public official who does not occupy a Cabinet position (i.e., President, the
Vice-President, Members of the Cabinet, their deputies and assistants), Duque was thus covered
by the general rule enunciated under Section 7, paragraph (2), Article IX-B. He can hold any
other office or employment in the Government during his tenure if such holding is allowed by law
or by the primary functions of his position.

Respondents insist that Duque’s ex officio designation as member of the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF is allowed by the primary functions of his position as the
CSC Chairman. To support this claim, they cite Section 14, Chapter 3, Title I-A, Book V of EO
292, to wit:

Section 14. Membership of the Chairman in Boards.—The Chairman shall be a member of the
Board of Directors or of other governing bodies of government entities whose functions affect the
career development, employment status, rights, privileges, and welfare of government officials
and employees, such as the Government Service Insurance System, Foreign Service Board,
Foreign Trade Service Board, National Board for Teachers, and such other similar boards as
may be created by law.

As to the meaning of ex officio, the Court has decreed in Civil Liberties Union v. Executive
Secretary that –

x x x x The term ex officiomeans "from office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position." Ex officio likewise denotes an "act done in an official character,
or as a consequence of office, and without any other appointment or authority other than that
conferred by the office." An ex officio member of a board is one who is a member by virtue of his
title to a certain office, and without further warrant or appointment. x x x

xxxx

The ex officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his services
in the said position. The reason is that these services are already paid for and covered by the
compensation attached to his principal office. x x x35

Section 3, Article IX-B of the 1987 Constitution describes the CSC as the central personnel
agency of the government and is principally mandated to establish a career service and adopt
measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and
courtesy in the civil service; to strengthen the merit and rewards system; to integrate all human
resources development programs for all levels and ranks; and to institutionalize a management
climate conducive to public accountability. Its specific powers and functions are as follows:

(1) Administer and enforce the constitutional and statutory provisions on the merit system
for all levels and ranks in the Civil Service;

(2) Prescribe, amend and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws;
(3) Promulgate policies, standards and guidelines for the Civil Service and adopt plans
and programs to promote economical, efficient and effective personnel administration in
the government;

(4) Formulate policies and regulations for the administration, maintenance and
implementation of position classification and compensation and set standards for the
establishment, allocation and reallocation of pay scales, classes and positions;

(5) Render opinion and rulings on all personnel and other Civil Service matters which
shall be binding on all heads of departments, offices and agencies and which may be
brought to the Supreme Court on certiorari;

(6) Appoint and discipline its officials and employees in accordance with law and exercise
control and supervision over the activities of the Commission;

(7) Control, supervise and coordinate Civil Service examinations. Any entity or official in
government may be called upon by the Commission to assist in the preparation and
conduct of said examinations including security, use of buildings and facilities as well as
personnel and

transportation of examination materials which shall be exempt from inspection

regulations;

(8) Prescribe all forms for Civil Service examinations, appointments, reports and such
other forms as may be required by law, rules and regulations;

(9) Declare positions in the Civil Service as may properly be primarily confidential, highly
technical or policy determining;

(10) Formulate, administer and evaluate programs relative to the development and
retention of qualified and competent work force in the public service;

(11) Hear and decide administrative cases instituted by or brought before it directly or on
appeal, including contested appointments, and review decisions and actions of its offices
and of the agencies attached to it. Officials and employees who fail to comply with such
decisions, orders, or rulings shall be liable for contempt of the Commission. Its decisions,
orders, or rulings shall be final and executory. Such decisions, orders, or rulings may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty (30)
daysfrom receipt of a copy thereof;

(12) Issue subpoena and subpoena duces tecum for the production of documents and
records pertinent to investigation and inquiries conducted by it in accordance withits
authority conferred by the Constitution and pertinent laws;

(13) Advise the President on all matters involving personnel management in the
government service and submit to the President an annual report on the personnel
programs;

(14) Take appropriate action on all appointments and other personnel matters in the Civil
Service including extension of Service beyond retirement age;

(15) Inspect and audit the personnel actions and programs of the departments, agencies,
bureaus, offices, local government units and other instrumentalities of the government
including government-owned or controlled corporations; conduct periodic review of the
decisions and actions of offices or officials to whom authority has been delegated by the
 Commission as well as the conduct of the officials and the employees in these offices
and apply appropriate sanctions when necessary;

(16) Delegate authority for the performance of any functions to departments, agencies
and offices where such functions may be effectively performed;

(17) Administer the retirement program for government officials and employees, and
accredit government services and evaluate qualifications for retirement;

(18) Keep and maintain personnel records of all officials and employees in the Civil
Service; and

(19) Perform all functions properly belonging to a central personnel agency and such
other functions as may be provided by law.36

On the other hand, enumerated below are the specific duties and responsibilities of the CSC
Chairman, namely:

(1) Direct all operations of the Commission;

(2) Establish procedures for the effective operations of the Commission;

(3) Transmit to the President rules and regulations, and other guidelines adopted by the
Chairman which require Presidential attention including annual and other periodic
reports;

(4) Issue appointments to, and enforce decisions on administrative discipline involving
officials and employees of the Commission;

(5) Delegate authority for the performance of any function to officials and employees of
the Commission;

(6) Approve and submit the annual and supplemental budget of the Commission; and

(7) Perform such other functionsas may be provided by law.37

Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear that the CSC Chairman’s membership
in a governing body is dependent on the condition that the functions of the government entity
where he will sit as its Board member must affect the career development, employment status,
rights, privileges, and welfare of government officials and employees. Based on this, the Court
finds no irregularity in Section 14, Chapter 3, Title I-A, Book V of EO 292 because matters
affecting the career development, rights and welfare of government employees are among the
primary functions of the CSC and are consequently exercised through its Chairman. The CSC
Chairman’s membership therein must, therefore, be considered to be derived from his position as
such. Accordingly, the constitutionality of Section 14, Chapter 3, Title I-A, Book V of EO 292 is
upheld.

However, there is a need to determine further whether Duque’s designation as Board member of
the GSIS, PHILHEALTH, ECC and HDMF is in accordance with the 1987 Constitution and the
condition laid down in Section 14, Chapter 3, Title I-A, Book V of EO 292. It is necessary for this
purpose to examine the functions of these government entities under their respective charters, to
wit:

The GSIS Charter, Republic Act No. 8291

SECTION 41. Powers and Functions of the GSIS. — The GSIS shall exercise the following
powers and functions:

(a) to formulate, adopt, amend and/or rescind such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act, as well as the effective
exercise of the powers and functions, and the discharge of duties and responsibilities of
the GSIS, its officers and employees;

(b) to adopt or approve the annual and supplemental budget of receipts and expenditures
including salaries and allowances of the GSIS personnel; to authorize such capital and
operating expenditures and disbursements of the GSIS as may be necessary and proper
for the effective management and operation of the GSIS;

(c) to invest the funds of the GSIS, directly or indirectly, in accordance with the provisions
of this Act;

(d) to acquire, utilize or dispose of, in any manner recognized by law, real or personal
property in the Philippines or elsewhere necessary to carry out the purposes of this Act;

(e) to conduct continuing actuarialand statistical studies and valuations to determine the
financial condition of the GSIS and taking into consideration such studies and valuations
and the limitations herein provided, re-adjust the benefits, contributions, premium rates,
interest rates or the allocation or re-allocation of the funds to the contingencies covered;

(f) to have the power of succession;

(g) to sue and be sued;

(h) to enter into, make, perform and carry out contracts of every kind and description with
any person, firm or association or corporation, domestic or foreign;

(i) to carry on any other lawful business whatsoever in pursuance of, or in connection
with the provisions of this Act;

(j) to have one or more offices in and outside of the Philippines, and to conduct its
business and exercise its powers throughout and in any part of the Republic of the
Philippines and/or in any or all foreign countries, states and territories: Provided, That the
GSIS shall maintain a branch office in every province where there exists a minimum of
fifteen thousand (15,000) membership; (k) to borrow funds from any source, private or
government, foreign or domestic, only as an incident in the securitization of housing
mortgages of the GSIS and on account of its receivables from any government or private
entity;

(l) to invest, own or otherwise participate in equity in any establishment, firm or entity;

(m) to approve appointments in the GSIS except appointments to positions which are
policy determining, primarily confidential or highly technical in nature according to the
Civil Service rules and regulations: Provided, That all positions in the GSIS shall be
governed by a compensation and position classification system and qualifications
standards approved bythe GSIS Board of Trustees based on a comprehensive job
analysis and audit of actual duties and responsibilities: Provided, further, That the
compensation plan shall be comparable with the prevailing compensation plans in the
private sector and shall be subject to the periodic review by the Board no more than once
every four (4) years without prejudice to yearly merit reviews or increases based on
productivity and profitability;
(n) to design and adopt an Early Retirement Incentive Plan (ERIP) and/or financial
assistance for the purpose of retirement for its own personnel;

(o) to fix and periodically review and adjust the rates of interest and other terms and
conditions for loans and credits extended to members or other persons, whether natural
or juridical;

(p) to enter into agreement with the Social Security System or any other entity,
enterprise, corporation or partnership for the benefit of members transferring from one
system to another subject to the provision of Republic Act No. 7699, otherwise known as
the Portability Law;

(q) to be able to float proper instrument to liquefy long-term maturity by pooling funds for
short-term secondary market;

(r) to submit annually, not later thanJune 30, a publicreport to the President of the
Philippines and the Congress of the Philippines regarding its activities in the
administration and enforcement of this Act during the preceding year including
information and recommendations on broad policies for the development and perfection
of the programs of the GSIS;

(s) to maintain a provident fund, which consists of contributions made by both the GSIS
and its officials and employees and their earnings, for the payment of benefits to such
officials and employees or their heirs under such terms and conditions as it may
prescribe;

(t) to approve and adopt guidelines affecting investments, insurance coverage of

government properties, settlement of claims, disposition of acquired assets, privatization
or expansion of subsidiaries, development of housing projects, increased benefit and
loan packages to members, and the enforcement of the provisions of this Act;

(u) any provision of law to the contrary notwithstanding, to authorize the payment of extra
remuneration to the officials and employees directly involved in the collection and/or
remittance of contributions, loan repayments, and other monies due to the GSIS at such
rates and under such conditions as itmay adopt. Provided, That the best interest of the
GSIS shall be observed thereby;

(v) to determine, fix and impose interest upon unpaid premiums due from employers and
employees;

(w) to ensure the collection or recovery of all indebtedness, liabilities and/or

accountabilities, includingunpaid premiums or contributions in favor of the GSISarising
from any cause or source whatsoever, due from all obligors, whether public or private.
The Board shall demand payment or settlement of the obligations referred to herein
within thirty (30) days from the date the obligation becomes due, and in the event of
failure or refusal of the obligor or debtor to comply with the demand, to initiate or institute
the necessary or proper actions or suits, criminal, civil or administrative or otherwise,
before the courts, tribunals, commissions, boards, or bodies of proper jurisdiction within
thirty (30) days reckoned from the expiry dateof the period fixed in the demand within
which to pay or settle the account;

(x) to design and implement programs that will promote and mobilize savings and provide
additional resources for social security expansion and at the same time afford individual
members appropriate returns on their savings/investments. The programs shall be so
designed as to spur socio-economic take-off and maintain continued growth; and
 (y) to exercise such powers and perform such other acts as may be necessary, useful,
incidental or auxiliary to carry out the provisions of this Act, or to attain the purposesand
objectives of this Act.

The PHILHEALTH Charter, Republic Act No. 7875

SEC. 16. Powers and Functions – The Corporation shall have the following powers and
functions:

(a) to administer the National Health Insurance Program;

(b) to formulate and promulgate policies for the sound administration of the Program;

(c) to set standards, rules, and regulations necessary to ensure quality of care,
appropriate utilization of services, fund viability, member satisfaction, and overall
accomplishment of Program objectives;

(d) to formulate and implement guidelines on contributions and benefits; portability of

benefits, cost containment and quality assurance; and health care provider
arrangements,payment, methods, and referral systems;

(e) to establish branch offices as mandated in Article V of this Act;

(f) to receive and manage grants, donations, and other forms of assistance;

(g) to sue and be sued in court;

(h) to acquire property, real and personal, which may be necessary or expedient for the
attainment of the purposes of this Act;

(i) to collect, deposit, invest, administer, and disburse the National Health Insurance Fund
in accordance with the provisions of this Act;

(j) to negotiate and enter into contracts with health care institutions, professionals, and
other persons, juridical or natural, regarding the pricing, payment mechanisms, design
and implementation of administrative and operating systems and procedures, financing,
and delivery of health services;

(k) to authorize Local Health Insurance Offices to negotiate and enter into contracts in the
name and on behalf of the Corporation with any accredited government or private sector
health provider organization, including but not limited to health maintenance
organizations, cooperatives and medical foundations, for the provision ofat least the
minimum package of personal health services prescribed by the Corporation;

(l) to determine requirements and issue guidelines for the accreditation of health care
providers for the Program in accordance with this Act;

(m) to supervise the provision of health benefits with the power to inspect medical and
financial records of health careproviders and patients who are participants in or members
of the Program, and the power to enter and inspect accredited health care institutions,
subject to the rules and regulations to be promulgated by the Corporation;

(n) to organize its office, fix the compensation of and appoint personnel as may be
deemed necessary and upon the recommendation of the president of the Corporation;
 (o) to submit to the President of the Philippines and to both Houses of Congress its
Annual Report which shall contain the status of the National Health Insurance Fund, its
total disbursements, reserves, average costing to beneficiaries, any request for additional
appropriation, and other data pertinent to the implementation of the Program and publish
a synopsis of such report in two (2) newspapers of general circulation;

(p) to keep records of the operations of the Corporation and investments of the National
Health Insurance Fund; and

(q) to perform such other acts as it may deem appropriate for the attainment of the
objectives of the Corporation and for the proper enforcement of the provisions of this Act

The HDMF Charter, Republic Act No. 9679

SEC. 13. Powers and Functions of the Fund.– The Fund shall have the powers and functions
specified in this Act and the usual corporate powers:

(a) To formulate, adopt, amend and/or rescind such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act, as well as the effective
exercise of the powers and functions, and the discharge of duties and responsibilities of
the Fund, its officers and employees;

(b) To adopt or approve the annual and supplemental budget of receipts and
expenditures including salaries and allowances of the Fund personnel, to authorize such
capital and operating expenditures and disbursements of the Fund as may be necessary
and proper for the effective management and operation of the Fund;

(c) To submit annually to the President of the Philippines not later than March 15, a
report of its activities and the state of the Fund during the preceding year, including
information and recommendations for the development and improvement thereof;

(d) To invest not less than seventy percent (70%) of its investible funds to housing, in
accordance with this Act;

(e) To acquire, utilize, or dispose of, in any manner recognized by law, real or personal
properties to carry out the purposes of this Act;

(f) To set up its own accounting and computer systems; to conduct continuing actuarial
and statistical studies and valuations to determine the financial viability of the Fund and
its project; to require reports, compilations and analysis of statistical and economic data,
as well as make such other studies and surveys asmay be needed for the proper
administration and development of the Fund;

(g) To have the power of succession; to sue and be sued; to adopt and use a corporate
seal;

(h) To enter into and carry out contracts of every kind and description with any person,
firm or association or corporation, domestic or foreign;

(i) To borrow funds from any source, private or government, foreign or domestic;

(j) To invest, own or otherwise participate in equity in any establishment, or entity; to

form, organize, invest in or establish and maintain a subsidiary or subsidiaries in relation
to any of its purposes;
(k) To approve appointments in the Fund except appointments to positions which are
policy determining, primarily confidential or highly technical in nature according to the civil
service rules and regulations: Provided, That all positions in the Fund shall be governed
by a compensation and position classification system and qualification standards
approved by the Fund's Board of Trustees based on a comprehensive job analysis, wage
compensation study and audit of actual duties and responsibilities: Provided, further,
That the compensation plan shall be comparable with prevailing compensation plans in
the private sector and shall be subject to the periodic review of the Board no more than
once everyfour (4) years without prejudice to yearly merit reviews or increases based on
productivity and profitability. The Fund shall, therefore, be exempt from any laws, rules
and regulations on salaries and compensations;

(l) To maintain a provident fund, which shall consist of contributions made by both the
Fund and its officers and employees and their earnings, for the payment ofbenefits to
such officials and employees or their heirs under such terms and conditions as it may
prescribe;

(m)To design and adopt an early retirement incentive plan (ERIP) for its own personnel;

(n) To establish field offices and to conduct its business and exercise its powers in these
places; (o) To approve restructuring proposalfor the payment of due but unremitted
contributions and unpaid loan amortizations under such terms and conditions as the
Board ofTrustees may prescribe;

(p) To determine, fix and impose interest and penalties upon unpaid contributions due
from employers and employees;

(q) To ensure the collection and recovery of all indebtedness, liabilities and/or
accountabilities, including unpaid contributions in favor of the Fund arising from any
cause or source or whatsoever, due from all obligors, whether public or private; to
demand payment of the obligations referred to herein, and in the event of failure or
refusal of the obligor or debtor to comply with the demand, to initiate or institute the
necessary or proper actions or suits, criminal, civil, administrative, or otherwise, before
the courts, tribunals, commissions, boards or bodies of proper jurisdiction: Provided,
however, That the Fund may compromise or release, in whole or in part, any interest,
penalty or civil liability to the Fund in connection with the collection of contributions and
the lending operations of the Fund, under such terms and conditions as prescribed by the
Board of Trustees: Provided, further, That the Board may, upon recommendation of the
Chief Executive Officer, deputize any member of the Fund's legal staff to act as special
sheriff in foreclosure cases, in the sale or attachment of the debtor's properties, and in
the enforcement ofcourt writs and processes in cases involving the Fund. The special
sheriff of the Fund shall make a report to the proper court after any action taken by him,
which shall treat such action as if it were an act of its own sheriffs in all respects;

(r) To design and implement other programs that will further promote and mobilize
savings and provide additional resources for the mutual benefit of the members with
appropriate returns on the savings/investments. The program shall be so designed as to
spur socioeconomic take-off and maintain continued growth;

(s) To conduct continuing actuarialand statistical studies and valuations to determine the
financial condition of the Fund and taking into consideration such studies and valuations
and the limitations herein provided, readjust the benefits, contributions, interest rates of
the allocation or reallocation of the funds to the contingencies covered; and

(t) To exercise such powers and perform such acts as may be necessary, useful,
incidental or auxiliary to carry out the provisions of this Act.
The ECC Charter, Presidential Decree No. 626

ART. 177. Powers and duties. - The Commission shall have the following powers and duties:

(a) To assess and fix a rate of contribution from all employers;

(b) To determine the rate of contribution payable by an employer whose records show a
high frequency of work accidents or occupational disease due to failure by the said
employer to observe adequate safety measures;

(c) To approve rules and regulations governing the processing of claims and the
settlement of disputes arising therefrom as prescribed by the System;

(d) To initiate policies and programs toward adequate occupational health and safety and
accident prevention in the working environment, rehabilitation other than those provided
for under Art. 190 hereof, and other related programs and activities, and to appropriate
funds therefor. (As amended by Sec. 3, P.D. 1368).

(e) To make the necessary actuarial studies and calculations concerning the grant of
constant help and income benefits for permanent disability or death, and the
rationalization of the benefits for permanent disability and death under the Title with
benefits payable by the System for similar contingencies; Provided; That the Commission
may upgrade benefits and add new ones subject toapproval of the President; and
Provided, Further, That the actuarial stabilityof the State Insurance Fund shall be
guaranteed; Provided, Finally, that such increases in benefits shall not require any
increases in contribution, except as provided for in paragraph (b) hereof. (As amended by
Sec. 3, P.D. 1641).

(f) To appoint the personnel of its staff, subject to civil service law and rules, but exempt
from WAPCO law and regulations;

(g) To adopt annually a budget of expenditures of the Commission and its staff
chargeable against the State Insurance Fund: Provided, that the SSS and GSIS shall
advance on a quarterly basis the remittances of allotment of the loading fund for this
Commission's operational expenses based on its annual budget as duly approved by the
Ministry of Budget and Management. (As amended by Sec. 3, P.D. 1921).

(h) To have the power to administeroath and affirmation, and to issue subpoena and
subpoena duces tecum in connection with any question or issue arising from appealed
cases under this Title.

(i) To sue and be sued in court;

(j) To acquire property, real or personal, which may be necessary or expedient for the
attainment of the purposes of this Title;

(k) To enter into agreements or contracts for such services or aid as may be needed for
the proper, efficient and stable administration of the program;

(l) To perform such other acts as it may deem appropriate for the attainment of the
purposes of the Commission and proper enforcement of the provisions of thisTitle. (As
amended by Sec. 18, P.D.850). (Emphasis supplied.)

The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with various
powers and functions to carry out the purposes for which they were created. While powers and
functions associated with appointments, compensation and benefits affect the career
development, employment status, rights, privileges, and welfare of government officials and
employees, the GSIS, PHILHEALTH, ECC and HDMF are also tasked to perform other corporate
powers and functions that are not personnel-related. All of these powers and functions, whether
personnel-related or not, are carried out and exercised by the respective Boards of the GSIS,
PHILHEALTH, ECC and HDMF. Hence, when the CSC Chairman sits as a member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise these powers
and functions, which are not anymore derived from his position as CSC Chairman, such as
imposing intereston unpaid or unremitted contributions,38 issuing guidelines for the accreditation
of health care providers,39 or approving restructuring proposals in the payment of unpaid loan
amortizations.40 The Court also notes that Duque’s designation as member of the governing
Boards of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per diem,41 a form of
additional compensation that is disallowed by the concept of an ex officioposition by virtue of its
clear contravention of the proscription set by Section 2, Article IX-A of the 1987 Constitution. This
situation goes against the principle behind an ex officio position, and must, therefore, be held
unconstitutional.

Apart from violating the prohibition against holding multiple offices, Duque’s designation as
member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF impairs the
independence of the CSC. Under Section 17,42 Article VII of the Constitution, the President
exercises control over all government offices in the Executive Branch. An office that is legally not
under the control of the President is not part of the Executive Branch.43 The Court has aptly
explained in Rufino v. Endriga:44

Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, ormust be a quasi-
judicial body or local government unit. Otherwise, such government office, entity, or agency has
no legal and constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is
1âw phi1

also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body
nor a local government unit. Thus, the CCP must fall underthe Executive branch. Under the
Revised Administrative Code of 1987, any agency "not placed by law or order creating them
under any specific department" falls "under the Office of the President."

Since the President exercises control over "all the executive departments, bureaus, and offices,"
the President necessarily exercises control over the CCP which is an office in the Executive
branch. In mandating that the President "shall have control of all executive . . . offices," x x x
Section 17, Article VII of the 1987 Constitution does not exempt any executive office —
oneperforming executive functions outside of the independent constitutional bodies — from the
President’s power of control. There is no dispute that the CCP performs executive, and not
legislative, judicial, or quasi-judicial functions.

The President’s power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to revise
or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.

In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution
where an officer of the Executive branch is outside the control of the President. The Executive
branch is unitary since there is only one President vested with executive power exercising control
over the entire Executive branch. Any office in the Executive branch that is not under the control
of the President is a lost command whose existence is withoutany legal or constitutional basis.
(Emphasis supplied)
As provided in their respective charters, PHILHEALTH and ECC have the status of a government
corporation and are deemed attached to the Department of Health45 and the Department of
Labor,46 respectively. On the other hand, the GSIS and HDMF fall under the Office of the
President.47 The corporate powers of the GSIS, PHILHEALTH, ECC and HDMF are exercised
through their governing Boards, members of which are all appointed by the President of the
Philippines. Undoubtedly, the GSIS, PHILHEALTH, ECC and HDMF and the members of their
respective governing Boards are under the control of the President. As such, the CSC Chairman
cannot be a member of a government entity that is under the control of the President without
impairing the independence vested in the CSC by the 1987 Constitution.

3.

Effect of declaration of unconstitutionality

of Duque’s designation as member of the
governing Boards of theGSIS, PHILHEALTH,
ECC and HDMF - The De FactoOfficer Doctrine

In view of the application of the prohibition under Section 2, Article IX-A of the 1987 Constitution,
Duque did not validly hold office as Director or Trustee of the GSIS, PHILHEALTH, ECC and
HDMF concurrently with his position of CSC Chairman. Accordingly, he was not to be considered
as a de jure officer while he served his term as Director or Trustee of these GOCCs. A de jure
officer is one who is deemed, in all respects, legally appointed and qualified and whose term of
office has not expired.48

That notwithstanding, Duque was a de facto officer during his tenure as a Director or Trustee of
the GSIS, PHILHEALTH, ECC and HDMF. In Civil Liberties Union v. Executive Secretary,49 the
Court has said:

During their tenure in the questioned positions, respondents may be considered de facto officers
and as such entitled to emoluments for actual services rendered. Ithas been held that "in cases
where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the services of an officer de facto and then be
freed from all liability to pay any one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.

A de facto officer is one who derives his appointment from one having colorable authority to
appoint, ifthe office is an appointive office, and whose appointment is valid on its face.50 He may
also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.51 Consequently, the acts of the de facto
officer are just as valid for all purposes as those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned.52

In order to be clear, therefore, the Court holds that all official actions of Duque as a Director or
Trustee of the GSIS, PHILHEAL TH, ECC and HDMF, were presumed valid, binding and
effective as if he was the officer legally appointed and qualified for the office.53 This clarification is
necessary in order to protect the sanctity and integrity of the dealings by the public with persons
whose ostensible authority emanates from the State. Duque's official actions covered by this
clarification extend but are not limited to the issuance of Board resolutions and memoranda
approving appointments to positions in the concerned GOCCs, promulgation of policies and
guidelines on compensation and employee benefits, and adoption of programs to carry out the
corporate powers of the GSIS, PHILHEAL TH, ECC and HDMF.
WHEREFORE, the petition is PARTIALLY GRANTED. The Court UPHOLDS THE
CONSTITUTIONALITY of Section 14, Chapter 3, Title I-A, Book V of Executive Order No. 292;
ANNULS AND VOIDS Executive Order No. 864 dated February 22, 2010 and the designation of
Hon. Francisco T. Duque III as a Member of the Board of Directors/Trustees of the Government
Service Insurance System; Philippine Health Insurance Corporation; Employees Compensation
Commission; and Home Development Mutual Fund in an ex officio capacity in relation to his
appointment as Chairman of the Civil Service Commission for being UNCONSTITUTIONAL AND
VIOLATIVE of Sections 1 and 2, Article IX-A of the 1987 Constitution; and DECLARES that Hon.
Francisco T. Duque III was a de facto officer during his tenure as Director/Trustee of the
Government Service Insurance System; Philippine Health Insurance Corporation; Employees
Compensation Commission; and Home Development Mutual Fund.

No pronouncement on costs of suit.

SO ORDERED.

Funa v. Acting Secretary Alberto Agra G.R. No. 191644, February 19, 2013 Ponente:
Bersamin
Facts:
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal Arroyo
appointed Agra as the Acting Secretary of Justice following the resignation of
Secretary Agnes VST Devanadera in order to vie for a congressional seat in Quezon
Province; that on March 5, 2010, President Arroyo designated Agra as the Acting
Solicitor General in a concurrent capacity; that on April 7, 2010, the petitioner, in his
capacity as a taxpayer, a concerned citizen and a lawyer, commenced this suit to
challenge the constitutionality of Agra’s concurrent appointments or designations,
claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution; that
during the pendency of the suit, President Benigno S. Aquino III appointed Atty. Jose
Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the Solicitor
General and commenced his duties as such on August 5, 2010. Agra renders a
different version of the antecedents. He represents that on January 12, 2010, he was
then the Government Corporate Counsel when President Arroyo designated him as
the Acting Solicitor General in place of Solicitor General Devanadera who had been
appointed as the Secretary of Justice; that on March 5, 2010, President Arroyo
designated him also as the Acting Secretary of Justice vice Secretary Devanadera
who had meanwhile tendered her resignation in order to run for Congress representing
a district in Quezon Province in the May 2010 elections; that he then relinquished his
position as the Government Corporate Counsel; and that pending the appointment of
his successor, Agra continued to perform his duties as the Acting Solicitor General.
Notwithstanding the conflict in the versions of the parties, the fact that Agra has
admitted to holding the two offices concurrently in acting capacities is settled, which is
sufficient for purposes of resolving the constitutional question that petitioner raises
herein.
Issue:
Is Agra’s holding of concurrent position unconstitutional?
Ruling:
 Yes. At the center of the controversy is the correct application of Section 13, Article
VII of the 1987 Constitution, viz: Section 13. The President, VicePresident, the
Members of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their
office. A relevant and complementing provision is Section 7, paragraph (2), Article IX-
B of the 1987 Constitution, to wit: Section 7. Unless otherwise allowed by law or the
primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. Being
designated as the Acting Secretary of Justice concurrently with his position of Acting
Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII,
supra, whose text and spirit were too clear to be differently read. Hence, Agra could
not validly hold any other office or employment during his tenure as the Acting Solicitor
General, because the Constitution has not otherwise so provided.
Section 7

G. R. No. 180989 February 7, 2012

GUALBERTO J. DELA LLANA, Petitioner,

vs.
THE CHAIRPERSON, COMMISSION ON AUDIT, THE EXECUTIVE SECRETARY and THE
NATIONAL TREASURER, Respondents.

DECISION

SERENO, J.:

This is a Petition for Certiorari under Rule 65 of the Rules of Court with a prayer for the issuance
of a temporary restraining order pursuant to Section 7, Article IX-D of the 1987 Constitution,
seeking to annul and set aside Commission on Audit (COA) Circular No. 89-299, which lifted its
system of pre-audit of government financial transactions.

Statement of the Facts and the Case

On 26 October 1982, the COA issued Circular No. 82-195, lifting the system of pre-audit of
government financial transactions, albeit with certain exceptions. The circular affirmed the state
policy that all resources of the government shall be managed, expended or utilized in accordance
with law and regulations, and safeguarded against loss or wastage through illegal or improper
disposition, with a view to ensuring efficiency, economy and effectiveness in the operations of
government. Further, the circular emphasized that the responsibility to ensure faithful adherence
to the policy rested directly with the chief or head of the government agency concerned. The
circular was also designed to further facilitate or expedite government transactions without
impairing their integrity.

After the change in administration due to the February 1986 revolution, grave irregularities and
anomalies in the government’s financial transactions were uncovered. Hence, on 31 March 1986,
the COA issued Circular No. 86-257, which reinstated the pre-audit of selected government
transactions. The selective pre-audit was perceived to be an effective, although temporary,
remedy against the said anomalies.

With the normalization of the political system and the stabilization of government operations, the
COA saw it fit to issue Circular No. 89-299, which again lifted the pre-audit of government
transactions of national government agencies (NGAs) and government-owned or -controlled
corporations (GOCCs). The rationale for the circular was, first, to reaffirm the concept that fiscal
responsibility resides in management as embodied in the Government Auditing Code of the
Philippines; and, second, to contribute to accelerating the delivery of public services and
improving government operations by curbing undue bureaucratic red tape and ensuring
facilitation of government transactions, while continuing to preserve and protect the integrity of
these transactions. Concomitant to the lifting of the pre-audit of government transactions of
NGAs and GOCCs, Circular No. 89-299 mandated the installation, implementation and
monitoring of an adequate internal control system, which would be the direct responsibility of the
government agency head.

Circular No. 89-299 further provided that the pre-audit activities retained by the COA as therein
outlined shall no longer be a pre-requisite to the implementation or prosecution of projects and
the payment of claims. The COA aimed to henceforth focus its efforts on the post-audit of
financial accounts and transactions, as well as on the assessment and evaluation of the
adequacy and effectivity of the agency’s fiscal control process. However, the circular did not
include the financial transactions of local government units (LGUs) in its coverage.

The COA later issued Circular No. 94-006 on 17 February 1994 and Circular No. 95-006 on 18
May 1995. Both circulars clarified and expanded the total lifting of pre-audit activities on all
financial transactions of NGAs, GOCCs, and LGUs. The remaining audit activities performed by
COA auditors would no longer be pre-requisites to the implementation or prosecution of projects,
perfection of contracts, payment of claims, and/or approval of applications filed with the
agencies.1

It also issued COA Circular No. 89-299, as amended by Circular No. 89-299A, which in Section
3.2 provides:

3.2 Whenever circumstances warrant, however, such as where the internal control system of a
government agency is inadequate, This Commission may reinstitute pre-audit or adopt such
other control measures, including temporary or special pre-audit, as are necessary and
appropriate to protect the funds and property of the agency.

On 18 May 2009, COA issued Circular No. 2009-002, which reinstituted the selective pre-audit of
government transactions in view of the rising incidents of irregular, illegal, wasteful and
anomalous disbursements of huge amounts of public funds and disposals of public property. Two
years later, or on 22 July 2011, COA issued Circular No. 2011-002, which lifted the pre-audit of
government transactions implemented by Circular No. 2009-002. In its assessment, subsequent
developments had shown heightened vigilance of government agencies in safeguarding their
resources.

In the interregnum, on 3 May 2006, petitioner dela Llana wrote to the COA regarding the
recommendation of the Senate Committee on Agriculture and Food that the Department of
Agriculture set up an internal pre-audit service. On 18 July 2006, the COA replied to petitioner,
informing him of the prior issuance of Circular No. 89-299.2 The 18 July 2006 reply of the COA
further emphasized the required observance of Administrative Order No. 278 dated 8 June 1992,
which directed the strengthening of internal control systems of government offices through the
installation of an internal audit service (IAS).
On 15 January 2008, petitioner filed this Petition for Certiorari under Rule 65. He alleges that the
pre-audit duty on the part of the COA cannot be lifted by a mere circular, considering that pre-
audit is a constitutional mandate enshrined in Section 2 of Article IX-D of the 1987
Constitution.3 He further claims that, because of the lack of pre-audit by COA, serious
irregularities in government transactions have been committed, such as the ₱728-million fertilizer
fund scam, irregularities in the ₱550-million call center laboratory project of the Commission on
Higher Education, and many others.

On 22 February 2008, public respondents filed their Comment4 on the Petition. They argue
therein that the Petition must be dismissed, as it is not proper for a petition for certiorari,
considering that (1) there is no allegation showing that the COA exercised judicial or quasi-
judicial functions when it promulgated Circular No. 89-299; and (2) there is no convincing
explanation showing how the promulgation of the circular was done with grave abuse of
discretion. Further, the Petition is allegedly defective in form, in that there is no discussion of
material dates as to when petitioner received a copy of the circular; there is no factual
background of the case; and petitioner failed to attach a certified true copy of the circular. In any
case, public respondents aver that the circular is valid, as the COA has the power under the
1987 Constitution to promulgate it.

On 9 May 2008, petitioner filed his Reply5 to the Comment.

On 17 June 2008, this Court resolved to require the parties to submit their respective
memoranda. On 12 September 2008, public respondents submitted their Memorandum.6 On 15
September 2008, Amethya dela Llana-Koval, daughter of petitioner, manifested to the Court his
demise on 8 July 2008 and moved that she be allowed to continue with the Petition and
substitute for him. Her motion for substitution was granted by this Court in a Resolution dated 7
October 2008. On 5 January 2009, petitioner, substituted by his daughter,7 filed his
Memorandum.8

The main issue for our resolution in this Petition is whether or not petitioner is entitled to the
extraordinary writ of certiorari.

Procedural Issues

Technical Defects of the Petition

Public respondents correctly allege that petitioner failed to attach a certified true copy of the
assailed Order, and that the Petition lacked a statement of material dates. In view, however, of
the serious matters dealt with in this Petition, this Court opts to tackle the merits thereof with
least regard to technicalities. A perusal of the Petition shows that the factual background of the
case, although brief, has been sufficiently alleged by petitioner.

Standing

This Petition has been filed as a taxpayer’s suit.

A taxpayer is deemed to have the standing to raise a constitutional issue when it is established
that public funds from taxation have been disbursed in alleged contravention of the law or the
Constitution.9 Petitioner claims that the issuance of Circular No. 89-299 has led to the dissipation
of public funds through numerous irregularities in government financial transactions. These
transactions have allegedly been left unchecked by the lifting of the pre-audit performed by COA,
which, petitioner argues, is its Constitutional duty. Thus, petitioner has standing to file this suit as
a taxpayer, since he would be adversely affected by the illegal use of public money.

Propriety of Certiorari
Public respondents aver that a petition for certiorari is not proper in this case, as there is no
indication that the writ is directed against a tribunal, a board, or an officer exercising judicial or
quasi-judicial functions, as required in certiorari proceedings.10 Conversely, petitioner for his part
claims that certiorari is proper under Section 7, Article IX-A of the 1987 Constitution, which
provides in part:

Section 7. x x x. Unless otherwise provided by this Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.

Petitioner is correct in that decisions and orders of the COA are reviewable by the court via a
petition for certiorari. However, these refer to decisions and orders which were rendered by the
COA in its quasi-judicial capacity. Circular No. 89-299 was promulgated by the COA under its
quasi-legislative or rule-making powers. Hence, Circular No. 89-299 is not reviewable by
certiorari.

Neither is a petition for prohibition appropriate in this case. A petition for prohibition is filed
against any tribunal, corporation, board, or person — whether exercising judicial, quasi-judicial,
or ministerial functions — who has acted without or in excess of jurisdiction or with grave abuse
of discretion, and the petitioner prays that judgment be rendered, commanding the respondent to
desist from further proceeding in the action or matter specified in the petition.11 However,
prohibition only lies against judicial or ministerial functions, but not against legislative or quasi-
legislative functions.12

Nonetheless, this Court has in the past seen fit to step in and resolve petitions despite their being
the subject of an improper remedy, in view of the public importance of the issues raised
therein.13 In this case, petitioner avers that the conduct of pre-audit by the COA could have
prevented the occurrence of the numerous alleged irregularities in government transactions that
involved substantial amounts of public money. This is a serious allegation of a grave deficiency in
observing a constitutional duty if proven correct.

This Court can use its authority to set aside errors of practice or technicalities of procedure,
including the aforementioned technical defects of the Petition, and resolve the merits of a case
with such serious allegations of constitutional breach. Rules of procedure were promulgated to
provide guidelines for the orderly administration of justice, not to shackle the hand that dispenses
it.14

Substantive Issues

The 1987 Constitution has made the COA the guardian of public funds, vesting it with broad
powers over all accounts pertaining to government revenues and expenditures and the use of
public funds and property, including the exclusive authority to define the scope of its audit and
examination; to establish the techniques and methods for the review; and to promulgate
accounting and auditing rules and regulations.15 Its exercise of its general audit power is among
the constitutional mechanisms that give life to the check and balance system inherent in our form
of government.16

Petitioner claims that the constitutional duty of COA includes the duty to conduct pre-audit. A 1âw phi 1

pre-audit is an examination of financial transactions before their consumption or payment.17 It

seeks to determine whether the following conditions are present: (1) the proposed expenditure
complies with an appropriation law or other specific statutory authority; (2) sufficient funds are
available for the purpose; (3) the proposed expenditure is not unreasonable or extravagant, and
the unexpended balance of appropriations to which it will be charged is sufficient to cover the
entire amount of the expenditure; and (4) the transaction is approved by the proper authority and
the claim is duly supported by authentic underlying evidence.18 It could, among others, identify
government agency transactions that are suspicious on their face prior to their implementation
and prior to the disbursement of funds.

Petitioner anchors his argument on Section 2 of Article IX-D of the 1987 Constitution, which
reads as follows:

Section 2.

1. The Commission on Audit shall have the power, authority, and duty to examine, audit,
and settle all accounts pertaining to the revenue and receipts of, and expenditures or
uses of funds and property, owned or held in trust by, or pertaining to, the Government,
or any of its subdivisions, agencies, or instrumentalities, including government-owned or
controlled corporations with original charters, and on a post- audit basis:

a. constitutional bodies, commissions and offices that have been granted fiscal
autonomy under this Constitution;

b. autonomous state colleges and universities;

c. other government-owned or controlled corporations and their subsidiaries; and

d. such non-governmental entities receiving subsidy or equity, directly or

indirectly, from or through the Government, which are required by law or the
granting institution to submit to such audit as a condition of subsidy or equity.
However, where the internal control system of the audited agencies is
inadequate, the Commission may adopt such measures, including temporary or
special pre-audit, as are necessary and appropriate to correct the deficiencies. It
shall keep the general accounts of the Government and, for such period as may
be provided by law, preserve the vouchers and other supporting papers
pertaining thereto.

2. The Commission shall have exclusive authority, subject to the limitations in this Article,
to define the scope of its audit and examination, establish the techniques and methods
required therefor, and promulgate accounting and auditing rules and regulations,
including those for the prevention and disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures or uses of government funds and
properties. (Emphasis supplied)

He claims that under the first paragraph quoted above, government transactions must undergo a
pre-audit, which is a COA duty that cannot be lifted by a mere circular.

We find for public respondents.

Petitioner’s allegations find no support in the aforequoted Constitutional provision. There is

nothing in the said provision that requires the COA to conduct a pre-audit of all government
transactions and for all government agencies. The only clear reference to a pre-audit
requirement is found in Section 2, paragraph 1, which provides that a post-audit is mandated for
certain government or private entities with state subsidy or equity and only when the internal
control system of an audited entity is inadequate. In such a situation, the COA may adopt
measures, including a temporary or special pre-audit, to correct the deficiencies.

Hence, the conduct of a pre-audit is not a mandatory duty that this Court may compel the COA to
perform. This discretion on its part is in line with the constitutional pronouncement that the COA
has the exclusive authority to define the scope of its audit and examination. When the language
of the law is clear and explicit, there is no room for interpretation, only application.19 Neither can
the scope of the provision be unduly enlarged by this Court.

WHEREFORE, premises considered, the Petition is DISMISSED.

SO ORDERED.

CASE:GUALBERTO J. DELA LLANA V. THE CHAIRPERSON, COMMISSION ON

AUDIT, et al.7 February 2012G.R. No. 180989; 665 SCRA 176(Sereno, J .)Facts:
This is a Petition in pursuant to Section 7, Article IX-D of the 1987 Constitution,
seeking to annul andset aside Commission on Audit (COA) Circular No. 89-299,
which lifted its system of pre-audit ofgovernment financial transactions.The rationale
for the circular was, first to reaffirm the concept that fiscal responsibility resides
inmanagement as embodied in the Government Auditing Code of the Philippines;
and, second, to contributeto accelerating the delivery of public services and
improving government operations by curbing unduebureaucratic red tape and
ensuring facilitation of government transactions, while continuing to preserve
andprotect the integrity of these transactions. As a taxpayer, Petitioner alleged
that pre-audit duty on the part of the COA cannot be lifted by merecircular,
considering the pre-audit is a constitutional mandate enshrined in Section 2 of Article
IX-D of the1987 Constitution. Moreover, he claims that because of the lack of pre-
audit by COA, serious irregularitiesin the government transactions have been
committed.

ISSUE:
1. WON Petitioner has legal standing2. Whether or not it is the constitutional duty of
COA to conduct pre-audit before the consummationof government transaction.

Held:
1.)
Yes
. Standing- This Petition is a
taxpayer’s suit. A taxpayer is deemed to have standing to raise a
constitutional issue when it is established that public funds from taxation have been
wrongly disbursed.Petitioner claims that the issuance of Circular No. 89299 has led
to the dissipation of public funds throughnumerous irregularities in government
financial transactions. These transactions have allegedly been leftunchecked by the
lifting of the pre- audit performed by COA, which petitioner argues, is its
Constitutionalduty. Thus, petitioner has standing to file this suit as a taxpayer, since
he would be adversely affected bythe illegal use of public money.2.)
It is not constitutional duty of the COA to conduct a pre-audit
-
The petitioner’s
allegations findno support in the Section 2 of Article IX-D of the 1987 Constitution. In
the said provision, it did not mentionthat it requires the COA to conduct a pre-audit of
all government transactions and for all governmentagencies. The only clear
reference to pre-audit requirement is found in Section 2, paragraph 1, whichprovides
that a post-audit is mandated for certain government or private entities with state
subsidy or equityand only when the internal control system of an audited entity is
inadequate. In such situation, the COAmay adopt measures, including temporary or
special pre-audit, to correct the deficiencies.Hence, the conduct of pre-audit is not
mandatory duty that this Court may compel the COA toperform. In accordance to the
constitutional pronouncement, COA has the exclusive authority to define thescope of
its audit and examination.

B. Civil Service Com

Section 1

G.R. No. 140335 December 13, 2000

THELMA P. GAMINDE, petitioner,

vs.
COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN, Hon. RAUL C. FLORES and
EMMANUEL M. DALMAN, respondents.

DECISION

PARDO, J.:

The Case

The case is a special civil action of certiorari seeking to annul and set aside two "decisions" of
the Commission on Audit ruling that petitioner’s term of office as Commissioner, Civil Service
Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as
set forth in her appointment paper.

The Facts

On June 11, 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde, ad
interim, Commissioner, Civil Service Commission. She assumed office on June 22, 1993, after
taking an oath of office. On September 07, 1993, the Commission on Appointment, Congress of
the Philippines confirmed the appointment. We quote verbatim her appointment paper:

"11 June 1993

"Madam:

"Pursuant to the provisions of existing laws, you are hereby appointed, ad interim,
COMMISSIONER, CIVIL SERVICE COMMISSION, for a term expiring February 2, 1999.

"By virtue hereof, you may qualify and enter upon the performance of the duties of the office,
furnishing this Office and the Civil Service Commission with copies of your oath of office."1

However, on February 24, 1998, petitioner sought clarification from the Office of the President as
to the expiry date of her term of office. In reply to her request, the Chief Presidential Legal
Counsel, in a letter dated April 07, 19982 opined that petitioner’s term of office would expire on
February 02, 2000, not on February 02, 1999.

Relying on said advisory opinion, petitioner remained in office after February 02, 1999. On
February 04, 1999, Chairman Corazon Alma G. de Leon, wrote the Commission on Audit
requesting opinion on whether or not Commissioner Thelma P. Gaminde and her co-terminous
staff may be paid their salaries notwithstanding the expiration of their appointments on February
02, 1999.
On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that "the
term of Commissioner Gaminde has expired on February 02, 1999 as stated in her appointment
conformably with the constitutional intent."3

Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of
disallowance No. 99-002-101 (99), disallowing in audit the salaries and emoluments pertaining to
petitioner and her co-terminous staff, effective February 02, 1999.4

On April 5, 1999, petitioner appealed the disallowance to the Commission on Audit en banc. On
June 15, 1999, the Commission on Audit issued Decision No. 99-090 dismissing petitioner’s
appeal. The Commission on Audit affirmed the propriety of the disallowance, holding that the
issue of petitioner’s term of office may be properly addressed by mere reference to her
appointment paper which set the expiration date on February 02, 1999, and that the Commission
is bereft of power to recognize an extension of her term, not even with the implied acquiescence
of the Office of the President.5

In time, petitioner moved for reconsideration; however, on August 17, 1999, the Commission on
Audit denied the motion in Decision No. 99-129.6

Hence, this petition.7

The Issue

The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as
Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired
on February 02, 1999, as stated in the appointment paper, or on February 02, 2000, as claimed
by her.

The Court’s Ruling

The term of office of the Chairman and members of the Civil Service Commission is prescribed in
the 1987 Constitution, as follows:

"Section 1 (2). The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, the Chairman shall hold office for seven years, a
Commissioner for five years, and another Commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting capacity."8

The 1973 Constitution introduced the first system of a regular rotation or cycle in the membership
of the Civil Service Commission. The provision on the 1973 Constitution reads:

"x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term
of seven years without reappointment. Of the Commissioners first appointed, one shall hold
office for seven years, another for five years, and the third for three years. Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor."9

Actually, this was a copy of the Constitutional prescription in the amended 1935 Constitution of a
rotational system for the appointment of the Chairman and members of the Commission on
Elections. The Constitutional amendment creating an independent Commission on Elections
provides as follows:

"Section 1. There shall be an independent Commission on Elections composed of a Chairman

and two other Members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine years, another for six
years, and the third for three years. The Chairman and the other Members of the Commission on
Elections may be removed from office only by impeachment in the manner provided in this
Constitution."10

In Republic vs. Imperial,11 we said that "the operation of the rotational plan requires two
conditions, both indispensable to its workability: (1) that the terms of the first three (3)
Commissioners should start on a common date, and, (2) that any vacancy due to death,
resignation or disability before the expiration of the term should only be filled only for the
unexpired balance of the term."12

Consequently, the terms of the first Chairmen and Commissioners of the Constitutional
Commissions under the 1987 Constitution must start on a common date, irrespective of the
variations in the dates of appointments and qualifications of the appointees, in order that the
expiration of the first terms of seven, five and three years should lead to the regular recurrence of
the two-year interval between the expiration of the terms.13

Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of
the terms of office of the first appointees to the Constitutional Commissions under the 1987
Constitution must be on February 02, 1987, the date of the adoption of the 1987 Constitution. In
case of a belated appointment or qualification, the interval between the start of the term and the
actual qualification of the appointee must be counted against the latter.14

In the law of public officers, there is a settled distinction between "term" and "tenure." "[T]he term
of an office must be distinguished from the tenure of the incumbent. The term means the time
during which the officer may claim to hold office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure represents the term during which the
incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure
may be shorter than the term for reasons within or beyond the power of the incumbent."15

In concluding that February 02, 1987 is the proper starting point of the terms of office of the first
appointees to the Constitutional Commissions of a staggered 7-5-3 year terms, we considered
the plain language of Article IX (B), Section 1 (2), Article IX (C), Section 1 (2) and Article IX (D),
Section 1 (2) of the 1987 Constitution that uniformly prescribed a seven-year term of office for
Members of the Constitutional Commissions, without re-appointment, and for the first appointees
terms of seven, five and three years, without re-appointment. In no case shall any Member be
appointed or designated in a temporary or acting capacity. There is no need to expressly state
the beginning of the term of office as this is understood to coincide with the effectivity of the
Constitution upon its ratification (on February 02, 1987).

On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides:

"SEC. 15. The incumbent Members of the Civil Service Commission, the Commission on
Elections, and the Commission on Audit shall continue in office for one year after the ratification
of this Constitution, unless they are sooner removed for cause or become incapacitated to
discharge the duties of their office or appointed to a new term thereunder. In no case shall any
Member serve longer than seven years including service before the ratification of this
Constitution."16

What the above quoted Transitory Provisions contemplate is "tenure" not "term" of the incumbent
Chairmen and Members of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, who "shall continue in office for one year after the ratification of this
Constitution, unless they are sooner removed for cause or become incapacitated to discharge
the duties of their office or appointed to a new term thereunder." The term "unless" imports an
exception to the general rule.17 Clearly, the transitory provisions mean that the incumbent
members of the Constitutional Commissions shall continue in office for one year after the
ratification of this Constitution under their existing appointments at the discretion of the
appointing power, who may cut short their tenure by: (1) their removal from office for cause; (2)
their becoming incapacitated to discharge the duties of their office, or (3) their appointment to a
new term thereunder, all of which events may occur before the end of the one year period after
the effectivity of the Constitution.

However, the transitory provisions do not affect the term of office fixed in Article IX, providing for
a seven-five-three year rotational interval for the first appointees under this Constitution.

At the time of the adoption of the 1987 Constitution, the incumbent Chairman and members of
the Civil Service Commission were the following: (1) Chairperson Celerina G. Gotladera. She
was initially appointed as OIC Chairman on March 19, 1986, and appointed chairman on
December 24, 1986, which she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On June
25, 1986, President Corazon C. Aquino appointed him Commissioner, without any term. He
assumed office on July 9, 1986, and served until March 31, 1987, when he filed a certificate of
candidacy for the position of Congressman, 2nd District, Leyte, thereby vacating his position as
Commissioner. His tenure was automatically cut-off by the filing of his certificate of candidacy. (3)
Atty. Mario D. Yango. On January 22, 1985, President Ferdinand E. Marcos appointed him
Commissioner for a term expiring January 25, 1990. He served until February 2, 1988, when his
term ended in virtue of the transitory provisions referred to. On May 30, 1988, President Aquino
re-appointed him to a new three-year term and served until May 31, 1991, exceeding his lawful
term, but not exceeding the maximum of seven years, including service before the ratification of
the 1987 Constitution. Under this factual milieu, it was only Commissioner Yango who was
extended a new term under the 1987 Constitution. The period consumed between the start of the
term on February 02, 1987, and his actual assumption on May 30, 1988, due to his belated
appointment, must be counted against him.

Given the foregoing common starting point, we compute the terms of the first appointees and
their successors to the Civil Service Commission under the 1987 Constitution by their respective
lines, as follows:

First line : Chairman – seven-year term. February 02, 1987 to February 01, 1994. On January 30,
1988, the President nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service Commission.
On March 02, 1988, the Commission on Appointments confirmed the nomination. She assumed
office on March 04, 1988. Her term ended on February 02, 1994. She served as de
facto Chairman until March 04, 1995. On March 05, 1995, the President appointed then Social
Welfare Secretary Corazon Alma G. de Leon, Chairman, Civil Service Commission, to a regular
seven-year term. This term must be deemed to start on February 02, 1994, immediately
succeeding her predecessor, whose term started on the common date of the terms of office of
the first appointees under the 1987 Constitution. She assumed office on March 22, 1995, for a
term expiring February 02, 2001.

This is shown in her appointment paper, quoted verbatim as follows:

"March 5, 1995

"Madam:

"Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the Constitution, you are
hereby appointed, ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a term expiring
February 2, 2001.

"By virtue hereof, you may qualify and enter upon the performance of the duties of the office,
furnishing this Office and the Civil Service Commission with copies of your oath of office.
"(Sgd.) FIDEL V. RAMOS"

Second line : Commissioner – Five-year term. February 02, 1987 to February 02, 1992. On
January 30, 1988, the President nominated Atty. Samilo N. Barlongay Commissioner, Civil
Service Commission. On February 17, 1988, the Commission on Appointments, Congress of the
Philippines, confirmed the nomination. He assumed office on March 04, 1988. His term ended on
February 02, 1992. He served as de facto Commissioner until March 04, 1993.

On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner, Civil
Service Commission, for a term expiring February 02, 1999.18 This terminal date is specified in
her appointment paper. On September 07, 1993, the Commission on Appointments confirmed
the appointment. She accepted the appointment and assumed office on June 22, 1993. She is
bound by the term of the appointment she accepted, expiring February 02, 1999. In this
connection, the letter dated April 07, 1998, of Deputy Executive Secretary Renato C.
Corona19 clarifying that her term would expire on February 02, 2000, was in error. What was
submitted to the Commission on Appointments was a nomination for a term expiring on February
02, 1999. Thus, the term of her successor20 must be deemed to start on February 02, 1999, and
expire on February 02, 2006.

Third line : Commissioner – Three-year term. February 02, 1987 to February 02, 1990. Atty.
Mario D. Yango was incumbent commissioner at the time of the adoption of the 1987
Constitution. His extended tenure ended on February 02, 1988. In May, 1988, President Corazon
C. Aquino appointed him Commissioner, Civil Service Commission to a new three-year term
thereunder. He assumed office on May 30, 1988. His term ended on February 02, 1990, but
served as de facto Commissioner until May 31, 1991. On November 26, 1991, the President
nominated Atty. Ramon P. Ereñeta as Commissioner, Civil Service Commission. On December
04, 1991, the Commission on Appointments confirmed the nomination. He assumed office on
December 12, 1991, for a term expiring February 02, 1997.21

Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997, President
Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner, Civil Service Commission,
for a term expiring February 02, 2004. He assumed office on February 11, 1997.

Thus, we see the regular interval of vacancy every two (2) years, namely, February 02, 1994, for
the first Chairman,22 February 02, 1992, for the first five-year term Commissioner,23 and February
02, 1990, for the first three-year term Commissioner.24 Their successors must also maintain the
two year interval, namely: February 02, 2001, for Chairman;25 February 02, 1999, for
Commissioner Thelma P. Gaminde, and February 02, 1997, for Commissioner Ramon P.
Ereñeta, Jr.

The third batch of appointees would then be having terms of office as follows:

First line : Chairman, February 02, 2001 to February 02, 2008; Second line: Commissioner,
February 02, 1999 to February 02, 2006;26 and, Third line: Commissioner, February 02, 1997 to
February 02, 2004,27 thereby consistently maintaining the two-year interval.

The line of succession, terms of office and tenure of the Chairman and members of the Civil
Service Commission may be outlined as follows:28

Chairman Term Tenure

(7-year original)

Sto. Tomas – 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to
Feb. 02, 1994 March 08, 1995

De Leon – 2nd appointee Feb. 02, 1994 to March 22, 1995 to

(incumbent) Feb. 02, 2001 Feb. 02, 2001

_______ - 3rd appointee Feb. 02, 2001 to

Feb. 02, 2008

2nd Member Term Tenure

(5-year original)

Barlongay – 1st appointee Feb. 02, 1987 to March 04, 1988 to

Feb. 02, 1992 March 04, 1993

Gaminde – 2nd appointee Feb. 02, 1992 to June 11, 1993 to

Feb. 02, 1999 Feb. 02, 2000

Valmores – 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to

(incumbent) Feb. 02, 2006 Feb. 02, 2006

3rd Member Term Tenure

(3-year original)

Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to

Feb. 02, 1990 May 31, 1991

Ereñeta – 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to

Feb. 02, 1997 Feb. 02, 1997

Erestain, Jr. – 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to

(incumbent) Feb. 02, 2004 Feb. 02, 2004

The Fallo

WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as Commissioner,
Civil Service Commission, under an appointment extended to her by President Fidel V. Ramos
on June 11, 1993, expired on February 02, 1999. However, she served as de facto officer in
good faith until February 02, 2000, and thus entitled to receive her salary and other emoluments
for actual service rendered. Consequently, the Commission on Audit erred in disallowing in audit
such salary and other emoluments, including that of her co-terminous staff.

ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they

disallow the salaries and emoluments of Commissioner Thelma P. Gaminde and her coterminous
staff during her tenure as de facto officer from February 02, 1999, until February 02, 2000.
This decision shall be effective immediately.

No costs.

SO ORDERED.

GAMINDE vs. COA

G.R. No. 140335, December 13, 2000

Facts: Thelma Gaminde was appointed by the President of the Philippines as

Commissioner of the Civil Service Commission, ad interim and assumed
office on June 22, 1993 after oath of office. The Commission on
Appointments (COA) and the Congress of the Philippines confirmed the
appointment on September 7, 1993. Gaminde, on February 24, 1998, sought
the Office of the President for clarification on the expiry date of her term of
office. In response to her request, the Chief Presidential Legal Counsel
opined that her term office will expire on February 2, 2000 instead of
February 2, 1999. Relying on said advisory opinion, Gaminde remained in
office after February 2, 1999. However, on February 4, 1999, Chairman
Corazon Alma de Leon wrote COA requesting opinion whether or not
Gaminde and her co-terminus staff may be paid their salaries notwithstanding
the expiration of their appointments on February 2, 1999. The General
Counsel of COA issued an opinion on February 18, 1999 that “the term of
Commissioner Gaminde has expired on February 2, 1999 as stated in her
appointment conformably with the constitutional intent.” Consequently, on
March 24, 1999, CSC Resident Auditor Flovitas Felipe issued a Notice of
Disallowance, disallowing in audit the salaries and emoluments of Gaminde
and her co-terminus staff effective February 2, 1999. Gaminde appealed
COA’s disallowance but it was dismissed, and affirmed the propriety of the
disallowance; and held that the issue of Gaminde’s office term may be
properly addressed by mere reference to her appointment paper which set the
expiration date of February 2, 1999, and that the Commission was bereft of
power to recognize an extension of her term, not even with the implied
acquiescence of the Office of the President. Gaminde moved for
reconsideration, but was denied by COA.

Issue: Whether the term of office of Thelma Gaminde, as Commissioner,

Civil Service Commission, to which she was appointed on June 11, 1993,
expired on February 2, 1999, as stated in the appointment paper, or on
February 2, 2000, as claimed by her.

Held: The term of office of Thelma P. Gaminde as the CSC Commissioner,

as appointed by President Fidel V. Ramos, expired on February 2, 1999.
However, she served as de-facto officer in good faith until February 2, 2000.
The term of office of the Chairman and members of the Civil Service
Commission is prescribed in the 1987 Constitution under Article IX-D,
Section 1 (2):

“The Chairman and the Commissioners shall be appointed by the President

withthe consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, the Chairman
shall hold office for seven years, a Commissioner for five years, and another
Commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting
capacity.”

Therefore, COA erred in disallowing in audit such salary and other

emoluments. Gaminde and her co-terminus staff are entitled to receive their
salary and other emoluments for actual service rendered.
Section 2
[G.R. No. 71818. August 19, 1986.]

METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM

(MWSS), Petitioner, v. HON. BIENVENIDO S. HERNANDEZ, Labor Arbiter,
NATIONAL LABOR RELATIONS COMMISSION, LEMUEL B. ALEGADO, DANILO
S. LOPEZ, FORTUNATO L. MADRONA, ETC., ET AL., Respondents.

Ariel F. Aguirre for Petitioner.

Celso A. Fernandez for Private Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; CIVIL SERVICE LAW; GOVERNS EMPLOYEES OF

GOVERNMENT-OWNED OR CONTROLLED CORPORATION. — Republic Act No. 6234
created it as a "government corporation to be known as the Metropolitan
Waterworks and Sewerage System." As in the case of the National Housing
Authority, therefore, employment in the MWSS is governed not by the Labor Code
but by the civil service law, rules and regulations; and controversies arising from or
connected with that employment are not cognizable by the National Labor Relations
Commission.

2. ID.; ID.; ID.; INCLUDES CONTRACTUAL EMPLOYEES OF GOVERNMENT-OWNED

OR CONTROLLED CORPORATION. — The argument of the Labor Arbiter that it is only
disputes between the MWSS and its regular employees that are beyond the
jurisdiction of the NLRC, not those between it and its "non-regular or contractual"
employees, is sophistical. There is no legal or logical justification for such a
distinction. Indeed, it is ruled out by the fact that positions in the civil service are
classified into career and non-career service, and that the non-career service
includes inter alia —." . . Contractual personnel or those whose employment in the
government is in accordance with a special contract to undertake a specific work or
job, requiring special of technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall exceed one year, and
performs or accomplishes the specific work of job, under his own responsibility with
a minimum of direction and supervision from the hiring agency."

DECISION

NARVASA, J.:

Petitioner Metropolitan Waterworks and Sewerage System (MWSS) was haled before
the Arbitration Branch, National Capital Region of the National Labor Relations
Commission on charges of willful failure to pay wage differentials, allowances and
other monetary benefits to its contractual employees numbering 2,500 or so. 1 In
answer, MWSS asserted that: chanrob1es vi rtua l 1aw li bra ry

(1) it "is a government-owned and controlled corporation and therefore . . . (the

NLRC) has no jurisdiction over the . . . case", and (2) assuming the contrary
arguendo, "the terms and conditions of the complainants who are all contractual
employees are governed by their respective contracts." 2

On June 5, 1985, judgment was rendered by the Labor Arbiter to whom the case
was assigned, adverse to MWSS. As regards the claim of MWSS of lack of
jurisdiction in the NLRC over the case, the Arbiter made the following
observations: jgc:chanrob les.com. ph

". . . This Commission agree (sic) with the respondent that if the complainants are
regular employees of MWSS, it being a government-owned and controlled
corporation, said employees are within the mantle of the civil service rules and
regulations, their salaries are standardized by the National Assembly, then this
Commission has no jurisdiction in the case. 3 . . . (But an examination of the records
shows) . . . that complainants are not a regular employee of the respondent MWSS,
but one of a hired workers or employees for a limited period, that is upon
completion of the project for which they were hired, they can be removed by the
respondent, because there is no more work or the contract has already been
terminated (sic)." 4

The proferred deduction: while controversies respecting terms and conditions of

employment between MWSS and its regular employees are not within the
jurisdiction of the NLRC, said controversies do fall within the competence of the
NLRC if they involve non-regular or contractual employees of the MWSS.

Anent the second argument of MWSS which the Arbiter understands to be "that the
contract of employment by the complainants . . . is governed by their contract,
(and) it is therefore incumbent for the respondent 5 to be governed and to comply
with their contract, 6 he has this to say:
jgc:chanrob les.com. ph

"Respondent (MWSS) is citing Article 277 of the Labor Code to vouchsafe (sic) its
contention about the lack of jurisdiction of the NLRC. The provision, however, refers
to the governance of the Civil Service Law vis-a-vis the terms and conditions of
government employees, those of government corporations included. The complaint
is not such a case as it is for monetary claims about which the Civil Service Decree,
PD 807 does not provide. In fact, the last provision of Article 277 shows the ever
protection (sic) by the State through the Code of the workers’ right to due wages
and other benefits by enjoining not to reduce the privileges being enjoyed by
workers at the time of the adoption of the Code." 7

The propounded deduction: The Civil Service Decree applies to employees in

government corporations in all matters except "monetary claims" ; as regards the
latter, it is the Labor Code that governs.

It is to invalidate the decision of the Labor Arbiter as well as a subsequent order

directing execution thereof 8 and all other proceedings in the case 9 that MWSS has
come to this Court on certiorari and prohibition.

Evidently, the case turns upon the question: Are employees of the MWSS covered by
the Labor Code or by laws and regulations governing the civil service?

That question, framed in identical terms save only that it had reference to another
entity, the National Housing Corporation, has already been answered by this Court.
In National Housing Corporation v. Juco, 10 this Court ruled that —

1) "The NHC is a one hundred percent (100%) government-owned corporation . . .;

11

2) "There should no longer be any question at this time that employees of

government-owned or controlled corporations are governed by the civil service law
and civil service rules and regulations" ; 12 and

3) "The decision of the Labor Arbiter dismissing the case (filed against the NHC by
an employee) for lack of jurisdiction" was correct. 13

Now, the character of the MWSS as a government-owned or controlled corporation is

not contested; it is, in any case, a proposition that cannot be gainsaid. Republic Act
No. 6234 created it as a "government corporation to be known as the Metropolitan
Waterworks and Sewerage System." As in the case of the National Housing
Authority, therefore, employment in the MWSS is governed not by the Labor Code
but by the civil service law, rules and regulations; and controversies arising from or
connected with that employment are not cognizable by the National Labor Relations
Commission.

The argument of the Labor Arbiter that it is only disputes between the MWSS and its
regular employees that are beyond the jurisdiction of the NLRC, not those between it
and its "non-regular or contractual" employees, is sophistical. There is no legal or
logical justification for such a distinction. Indeed, it is ruled out by the fact that
positions in the civil service are classified into career and non-career service, 14 and
that the non-career service includes inter alia —

". . . Contractual personnel or those whose employment in the government is in

accordance with a special contract to undertake a specific work or job, requiring
special or technical skills not available in the employing agency, to be accomplished
within a specific period, which in no case shall exceed one year, and performs or
accomplishes the specific work or job, under his own responsibility with a minimum
of direction and supervision from the hiring agency." 15

The Labor Arbiter’s other postulation, that the Civil Service Law governs
employment in the MWSS in all aspect except "monetary claims," and that as to the
latter, it is the Labor Code that applies, is even more patently illogical, and deserves
no confutation.

But even more fallacious, almost unintelligible, is private respondents’ contention

that they "are not employees of Metropolitan Waterworks and Sewerage System
(MWSS)" ; 16 and "not being employees of the petitioner . . . (MWSS) . . . this case
therefore lies within the National Labor Relations Commission (NLRC) through
Arbiter Bienvenido Hernandez." 17 Such a contention also does not merit refutation.
As absurd and as undeserving of response, too, is the claim that "Existence of
employer-employee relationship (between the MWSS and an individual) is not per se
equivalent to being a government employee." 18

Arguments such as these, and the fractured syntax by which they are tendered,
should really have no place in a judicial record. They cannot persuade; they do but
irritate. What is worse, they produce much waste of valuable time. They are
symptomatic of defects in the training and appointing processes which must be
remedied.

WHEREFORE, the Decision of the Labor Arbiter dated June 5, 1985 and his Order of
July 8, 1985, having been rendered without jurisdiction, are hereby declared void
and set aside. Said Labor Arbiter is enjoined to take no further action on Case No.
NCR-9-3164-84 save to dismiss the same. Costs against private respondents.

SO ORDERED.

G.R. No. 80887 September 30, 1994

BLISS DEVELOPMENT CORPORATION EMPLOYEES UNION (BDCEU)-SENTRO NG

DEMOKRATIKONG MANGGAGAWA (SDM), petitioner,
vs.
HON. PURA FERRER CALLEJA and BLISS DEVELOPMENT CORPORATION, respondents.

Capulong, Magpantay, Ladrido, Canilao and Malabanan for private respondent.

KAPUNAN, J.:

The focal issue in the case at bench is whether or not Bliss Development Corporation (BDC) is a
government-owned controlled corporation subject to Civil Service Laws, rules and regulations.
Corollary to this issue is the question of whether or not petitioner is covered by Executive Order
No. 180 and must register under Section 7 thereof as a precondition for filing a petition for
certification election.

The antecedents of the case are:

On October 10, 1986, petitioner, a duly registered labor union, filed with the Department of
Labor, National Capital Region, a petition for certification election of private respondent Bliss
Development Corporation (BDC).

Based on the position papers submitted by the parties, Med-Arbiter Napoleon V. Fernando, in an
order dated January 26, 1987, dismissed the petition for lack of jurisdiction stating that the
majority of BDC's stocks is owned by the Human Settlement Development Corporation (HSDC),
a wholly-owned government corporation. Therefore, BDC is subject to Civil Service law, rules
and regulations. The pertinent portion of said Order reads:

It may not be amised (sic) to further state that the Supreme Court in its Decision
in the case of National Housing Corporation versus Benjamin Juco and the
National Labor Relations Commission G-R 63313 promulgated on January 17,
1985 has pronounced that:

There should no longer be any question at this time that

employees of government owned or controlled corporations are
governed by the Civil Service Rules and Regulations.

Corollary to the issue of whether or not employees of BDC may form or join labor
organizations therefore is the issue of whether or not BDC is a government
owned corporation.

The pertinent law on the matter is P.D. No. 2029 which provides that:

Section 2 — Definition — A government-owned or controlled

corporation is a stock or non-stock corporation whether
performing government or proprietary functions, which is directly
chartered by special law or if organized under the general
corporation law is owned or controlled by the government or
subsidiary corporation, to the extent of at least a majority of its
outstanding capital stock or of its outstanding voting stock.

In the case at bar, it is not disputed that majority of the stocks of BDC are owned
by Human Settlement Development Corporation, a wholly government owned
corporation, hence, this Office cannot, but otherwise conclude that Bliss
Development Corporation is a government owned corporation whose employees
are governed not by the Labor Code but by the Civil Service law, rules, and
regulations. Its employees therefore, are prohibited to join or form labor
organization. Further, this Office is without authority to entertain the present
petition for obvious lack of jurisdiction.

Indeed, Opinion No. 94, series of 1985, the Minister of Justice has declared:

In determining whether a corporation created under the

Corporation Code is government owned or controlled or not, this
ministry has consistently applied the ownership test whereby a
corporation will be deemed owned by the government if the
majority of its voting stocks are owned by the government.
 It appearing that Human Settlement Development Corporation (HSDC), which is
a wholly-owned government corporation, owns a majority of the stocks of Bliss
Development Corporation (BDC), our conclusion is that BDC is a government-
owned corporation subject to the coverage of the Civil Service law, rules and
regulations as pronounced by the Supreme Court in the case of NHA versus
Juco. 1

Petitioner then filed an appeal with the Bureau of Labor Relations.

In the meantime, or on June 1, 1987 Executive Order No. 180 was issued the then President
Corazon C. Aquino extending to government employees the right to organize and bargain
collectively. Sections 1 and 7 of said Order provide:

Sec. 1. This Executive Order applies to all employees of all branches,

subdivisions, instrumentalities, and agencies of the government, including
government-owned or controlled corporations with original charters. . . .
(Emphasis supplied)

Sec. 7. Government employees' organizations shall register with the Civil Service
Commission and the Department of Labor and Employment. The application shall
be filed with the Bureau of Labor Relations of the Department which shall process
the same in accordance with the provisions of the Labor Code of the Philippines,
as amended. Applications may also be filed with the Regional Offices of the
Department of Labor and Employment which shall immediately transmit the said
applications to the Bureau of Labor Relations within three (3) days from receipt
hereof.

On August 7, 1987, Director Pura Ferrer-Calleja of the Bureau of Labor Relations issued an
Order dismissing the appeal. Said Order is reproduced hereunder:

For disposition is an appeal of the Bliss Development Corporation Employees

Union Sentro ng Demokratikong Manggagawa (BDCEU-SDM) from the Order of
the Med-Arbiter dismissing its petition for direct certification/certification election
dated January 26, 1987.

On January 26, 1987, the Med-Arbiter issued an Order dismissing the petition
filed by BDCEU-SDM. He ruled that the Bliss Development Corporation which is
under the then Ministry of Human Settlement, is a government Corporation where
the workers are prohibited from organizing and joining labor unions. The Med-
Arbiter cited Opinion No. 94 series of 1985, of the Minister of Justice which is
hereunder quoted as follows:

In determining whether a corporation created under the

Corporation Code is government-owned or a controlled or not,
this Ministry has consistently applied the ownership test whereby
a corporation will be deemed owned by the government if all or a
majority of its stocks are owned by the government, and it will be
deemed controlled by the government, if the majority of its voting
stocks are owned by the government.

It appearing that HSDC, which is a wholly-owned government

corporation, owns a majority of the stocks of BDC, our conclusion
is that BDC is a government-owned corporation subject to the
coverage of the Civil Service Law and rules as pronounced by the
Supreme Court in the case of NHA vs. Juco.
 But circumstances have changed. With the issuance of Executive Order No. 180
dated June 1, 1987, government employees are now given the right to organize
and bargain collectively. This, therefore, renders academic the order subject of
the appeal.

xxx xxx xxx

Consequently, this Bureau hereby enjoins the Petitioner to register in accordance

with the aforecited provision. Meantime, the petition is dismissed without
prejudice to its refiling after petitioner is granted registration to avoid legal
complications.

WHEREFORE, in view of the foregoing, the case is hereby dismissed without

prejudice.

SO ORDERED. 2

Taking exception to the Director's Order, petitioner brought the instant petition to annul the same
on the following grounds:

THE DIRECTOR GRAVELY ABUSED HER DISCRETION AMOUNTING TO

LACK OF JURISDICTION WHEN SHE ORDERED PETITIONER TO REGISTER
UNDER SECTION 7 OF EXECUTIVE ORDER NO. 180 WHICH DOES NOT
COVER PETITIONER;

II

THE DIRECTOR GRAVELY ABUSED HER DISCRETION WHEN SHE

INSISTED ON ENFORCING AN OPINION OF THE MINISTER OF JUSTICE
WHICH RESPONDENT BDC ITSELF HAS CONSISTENTLY IGNORED AND
CONTINUES TO IGNORE AND WHICH THE ENTIRE GOVERNMENT DOES
NOT CARE TO ENFORCE. 3

In a resolution dated May 29, 1989 the Court gave due course to the petition and required the
parties to file their respective memoranda which was complied with. The Solicitor General
begged leave to be relieved from filing a comment on the petition and a memorandum, averring
that he could not sustain the position of respondent Director.

The petition is impressed with merit.

Section 1 of Executive Order No. 180 expressly limits its application to only government-owned
or controlled corporations with original charters. Hence, public respondent's order dated August
7, 1987 requiring petitioner to register in accordance with Section 7 of executive Order No. 180 is
without legal basis.

Without categorically saying so, public respondent sustained the Med-Arbiter's invocation of the
case of National Housing Corporation v. Juco, 4 which rules that the inclusion of "government-
owned or controlled corporations" within the embrace of the civil service shows a deliberate effort
of the framers of the 1973 Constitution to plug an earlier loophole which allowed government-
owned or controlled corporations to avoid the full consequences of the all encompassing
coverage of the civil service system. In said case, we stressed that:
 Section 1 of Article XII-B, Constitution uses the word "every" to modify the phrase
"government-owned or controlled corporation."

Every means each one of a group, without exception. It means all possible and
all, taken one by one. Of course, our decision in this case refers to a corporation
created as a government-owned or controlled
entity. . . . . 5

However, our ruling in NHC v. Juco 6 case, which was decided under the 1973 Constitution, lost
its applicability with the advent of the 1987 Constitution. Thus, in National Service Corporation v.
NLRC, 7 we held that:

. . . (I)n the matter of coverage by the civil service of government-owned or

controlled corporations, the 1987 Constitution starkly varies from the 1973
Constitution, upon which National Housing Corporation vs. Juco is based. Under
the 1973 Constitution, it was provided that:

The civil service embraces every branch, agency, subdivision,

and instrumentality of the Government, including every
government-owned or controlled corporation. . . . [Constitution,
1973, Art. II-B, Sec. I(1)]

On the other hand, the 1987 Constitution provides that:

The civil service embraces all branches, subdivisions,

instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original
charter. (Emphasis supplied) [Constitution (1987), Art. IX-B, Sec.
2(1).

Thus the situations sought to be avoided by the 1973 Constitution and expressed
by the Court in the National Housing Corporation case in the following manner —

The infirmity of the respondents' position lies in its permitting a

circumvention or emasculation of Section 1, Article XII-B of the
Constitution. It would be possible for a regulate ministry of
government to create a host of subsidiary corporations under the
Corporation Code funded by a willing legislature. A government-
owned corporation could create several subsidiary corporations.
These subsidiary corporations would enjoy the best of two worlds.
Their officials and employees would be privileged individuals, free
from the strict accountability required by the Civil Service Decree
and the regulations of the Commission on Audit. Their incomes
would not be subject to the competitive restrains of the open
market nor to the terms and conditions of civil service
employment. Conceivably, all government-owned or controlled
corporations could be created, no longer by special charters, but
through incorporations under the general law. The Constitutional
amendment including such corporations in the embrace of the
civil service would cease to have application. Certainly, such a
situation cannot be allowed to exist. [134 SCRA 182-183]

appear relegated to relative insignificance by the 1987 Constitutional provision

that the Civil Service embraces government-owned or controlled corporations
with original charter; and, therefore, by clear implication, the Civil Service does
not include government-owned or controlled corporations which are organized as
 subsidiaries of government-owned or controlled corporations under the general
corporation law. 8

A corporation is created by operation of law. It acquires a judicial personality either by special law
or a general law. The general law under which a private corporation may be formed or organized
is the Corporation Code, the requirements of which must be complied with by those wishing to
incorporate. Only upon such compliance will the corporation come into being and acquire a
juridical personality, thus giving rise to is right to exist and act as a legal entity. On the other
hand, a government corporation is normally created by special law, referred to often as a
charter. 9

BDC is a government-owned corporation created under the Corporation Law. It is without a

charter, governed by the Labor Code and not by the Civil Service Law hence, Executive Order
No. 180 does not apply to it.

Consequently, public respondent committed grave abuse of discretion in ordering petition to

register under Section 7, of Executive Order No. 180 as a precondition for filing a petition for
certification election.

WHEREFORE, the instant petition is hereby GRANTED. The order of public respondent dated
August 7, 1987 is SET ASIDE and the Director of Labor Relations is hereby directed to give due
course of petitioner's application for certification election.

SO ORDERED.

G.R. No. 91602 February 26, 1991

HONORABLE SIMPLICIO C. GRIÑO, SIXTO P. DEMAISIP, SANTOS B. AGUADERA,

MANUEL B. TRAVIÑA and MANUEL M. CASUMPANG, petitioners,
vs.
CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA, CIRILO GELVEZON, TEODULFO
DATO-ON, and NELSON GEDUSPAN, respondents.

Sixto P. Demaisip for petitioners.

Rex C. Muzones for private respondents.
Thelma A. Panganiban-Gaminde, Rogelio C. Limare and Normita M. Llamas-Villanueva for Civil
Service Commission.

GANCAYCO, J.:

The main issue in this petition is whether or not the position of a provincial attorney and those of
his legal subordinates are primarily confidential in nature so that the services of those holding the
said items can be terminated upon loss of confidence.

The facts of this case are simple.

Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He held this
position from April 3, 1973 up to June 2, 1986 when he offered to resign and his resignation was
accepted by the then Acting Governor. In his resignation letter, petitioner Demaisip
recommended the elevation of respondent Teotimo Arandela from Senior Legal Officer to
Provincial Attorney. OIC Governor Licurgo Tirador later on decided to appoint respondent
Arandela as the Provincial Attorney. Respondent Cirilo Gelvezon, on the other hand, was
promoted from Legal Officer II to Senior Legal Officer. Respondents Teodolfo Dato-on and
Nelson Geduspan were appointed to the position of Legal Officer II.

On February 2, 1988, petitioner Simplicio Griño assumed office as the newly elected governor of
Iloilo. One month later, he informed respondent Arandela and all the legal officers at the
Provincial Attorney's Office about his decision to terminate their services. In his letter, petitioner
Griño made mention of an article pertaining to the Iloilo office of the Provincial Attorney which
appeared in the Panay News and which "undermined that trust and confidence" that he reposed
on them. Petitioner Demaisip was reappointed by Governor Griño as the Provincial Attorney, The
latter, on the other hand, arranged the replacements of the other legal officers. Respondent Cirilo
Gelvezon was replaced by petitioner Santos Aguadera, respondent Nelson Geduspan was
replaced by petitioner Manuel Casumpang and petitioner Manuel Traviña took the place of
respondent Teodolfo Dato-on.

On March 15, 1988, petitioner Governor Griño formally terminated the services of the
respondents herein on the ground of loss of trust and confidence. This action taken by the
governor was appealed by respondents to the Merit Systems Protection Board of the Civil
Service Commission.

On March 9, 1989, the Merit Systems Board issued an Order declaring the respondents'
termination illegal and ordering that they be immediately restored to their positions with back
salaries and other emoluments due them. This was appealed by petitioner Griño to the Civil
Service Commission.

In Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission affirmed the
Order of the Merit Systems Protection Board, and directed that the respondents be restored to
their former legal positions and be paid back salaries and other benefits.

Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of the Civil
Service Commission. The motion was denied on December 7, 1989 in Resolution No. 89-920.

Hence, this petition for review whereby petitioners seek the reversal of Resolution No. 89-736 of
the Civil Service Commission and Resolution No. 89-920 which denied the Motion for
Reconsideration.

We shall first discuss whether the position of a provincial attorney is primarily confidential so that
the holder thereof may be terminated upon loss of confidence.

In Cadiente vs. Santos,1 this Court ruled that the position of a city legal officer is undeniably one
which is primarily confidential in this manner:

In resolving the merits of the instant case, We find as an undeniable fact that the position
of a City Legal Officer is one which is "primarily confidential." This Court held in the case
of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a
City Legal Officer is one requiring that utmost confidence on the part of the mayor be
extended to said officer. The relationship existing between a lawyer and his client,
whether a private individual or a public officer, is one that depends on the highest degree
of trust that the latter entertains for the counsel selected. As stated in the case of Pinero
vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 417 (citing De los Santos vs.
Mallare, 87 Phil. 289), the phrase "primarily confidential" "denotes not only confidence in
the aptitude of the appointee for the duties of the office but primarily close intimacy which
insures freedom of intercourse, without embarrassment or freedom from misgivings of
betrayals of personal trust on confidential matters of state. (Emphasis supplied.)

The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them endure;
 and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31,
1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such
position is separated from the service, such cessation entails no removal but an
expiration of his term. In the case of Hernandez vs. Villegas, L-17287, June 30, 1965, 14
SCRA 548, it was held —

It is to be understood of course that officials and employees holding primarily confidential

positions continue only for so long as confidence in them endures. The termination of
their official relation can be justified on the ground of loss of confidence because in that
case their cessation from office involves no removal but merely the expiration of the term
of office — two different causes for the termination of official relations recognized in the
Law of Public Officers.

In the case at bar, when the respondent City Mayor of Davao terminated the services of
the petitioner, he was not removed or dismissed. There being no removal or dismissal it
could not, therefore, be said that there was a violation of the constitutional provision that
"no officer or employee in the civil service shall be suspended or dismissed except for
cause as provided by law" (Article XII-B, Section 1 (3), 1973 Constitution).

The matter of expiration of a term of an officer holding a primarily confidential position, as

distinguished from a removal or dismissal, was further explained by this Court, in the
case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise:

When an incumbent of a primarily confidential position holds office at the pleasure of the
appointing power, and the pleasure turns into a displeasure, the incumbent is not
removed or dismissed from office — his term merely expires, in much the same way as
an officer, whose right thereto ceases upon expiration of the fixed term for which he had
been appointed or elected, is not and cannot be deemed removed or dismissed
therefrom, upon expiration of said term.

The main difference between the former — the primary confidential officer — and the
latter is that the latter's term is fixed or definite, whereas that of the former is not pre-
fixed, but indefinite, at the time of his appointment or election, and becomes fixed and
determined when the appointing power expresses its decision to put an end to the
services of the incumbent. When this event takes place, the latter is not removed or
dismissed from office — his term merely expired.

The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes,
stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In
said case We stated that:

The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them
endures, and thus their cessation involves no removal.2

In Besa vs. Philippine National Bank,3 where petitioner, who was the Chief Legal Counsel with
the rank of Vice President of the respondent Philippine National Bank, questioned his being
transferred to the position of Consultant on Legal Matters in the Office of President, this Court,
considering said position to be primarily confidential held —

It cannot be denied of course that the work of the Chief Legal Counsel of respondent
Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As
had been pointed out, however, it does not mean that thereby a client is precluded from
substituting in his stead another practitioner. That is his right; Ms decision to terminate
the relationship once made is impressed with the attribute of finality. The lawyer cannot
 be heard to complain; it is enough that his right to compensation earned be duly
respected.

In that sense, it is equally clear that where the position partakes of the attributes of being
both technical and confidential, there can be no insistence of a fixed or a definite term if
the latter aspect predominates. To paraphrase the language of the Chief Justice in the
opinion previously cited, the incumbent of a primarily confidential position, as was the
case of petitioner, should realize that at any time the appointing power may decide that
his services are no longer needed. As thus correctly viewed, Corpus v. Cuaderno cannot
be read as lending support to petitioner's efforts to retain his position as Chief Legal
Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its
Resolution No. 1053.

The question now is — should the ruling in Cadiente be made applicable to a provincial attorney?
According to the petitioners, Cadiente must be applied because by the nature of the functions of
a provincial attorney and a city legal officer, their positions are both primarily confidential.
Respondents, on the other hand, maintain that since the Civil Service Commission has already
classified the position of private respondent Arandela as a career position and certified the same
as permanent, he is removable only for cause, and therefore Cadiente is not applicable.

We agree with the petitioners and answer the question earlier propounded in the affirmative. A
city legal officer appointed by a city mayor to work for and in behalf of the city has for its
counterpart in the province a provincial attorney appointed by the provincial governor. In the
same vein, a municipality may have a municipal attorney who is to be named by the appointing
power. The positions of city legal officer and provincial attorney were created under Republic Act
No. 5185 which categorized them together as positions of "trust", to wit:

Sec. 19. Creation of positions of Provincial Attorney and City Legal officer. — To enable
the provincial and city governments to avail themselves of the full time and trusted
services of legal officers, the positions of provincial attorney and city legal officer may be
created and such officials shall be appointed in such manner as is provided for under
Section four of this Act. For this purpose the functions hitherto performed by the
provincial and city fiscals in serving as legal adviser and legal officer for civil cases of the
province and city shall be transferred to the provincial attorney and city legal officer,
respectively. (Emphasis supplied.)4

By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as the
legal adviser and legal officer for the civil cases of the province and the city that they work for.
Their services are precisely categorized by law to be "trusted services."

A comparison of the functions, powers and duties of a city legal officer as provided in the Local
Government Code with those of the provincial attorney of Iloilo would reveal the close similarity
of the two positions. Said functions clearly reflect the highly confidential nature of the two offices
and the need for a relationship based on trust between the officer and the head of the local
government unit he serves. The "trusted services" to be rendered by the officer would mean such
trusted services of a lawyer to his client which is of the highest degree of trust.5

The fact that the position of respondent Arandela as provincial attorney has already been
classified as one under the career service and certified as permanent by the Civil Service
Commission cannot conceal or alter its highly confidential nature. As in Cadiente where the
position of the city legal officer was duly attested as permanent by the Civil Service Commission
before this Court declared that the same was primarily confidential, this Court holds that the
position of respondent Arandela as the provincial attorney of Iloilo is also a primarily confidential
position. To rule otherwise would be tantamount to classifying two positions with the same nature
and functions in two incompatible categories. This being the case, and following the principle that
the tenure of an official holding a primarily confidential position ends upon loss of
confidence,6 the Court finds that private respondent Arandela was not dismissed or removed
from office when his services were terminated. His term merely expired.

The attorney-client relationship is strictly personal because it involves mutual trust and
confidence of the highest degree, irrespective of whether the client is a private person or a
government functionary.7 The personal character of the relationship prohibits its delegation in
favor of another attorney without the client's consent.8

However, the legal work involved, as distinguished from the relationship, can be delegated.9 The
practice of delegating work of a counsel to his subordinates is apparent in the Office of the
Provincial Attorney wherein it can be gleaned from the power granted to such officer to
exercise administrative supervision and control over the acts and decision of his subordinates.10

It is therefore possible to distinguish positions in the civil service where lawyers act as counsel in
confidential and non-confidential positions by simply looking at the proximity of the position in
question in relation to that of the appointing authority. Occupants of such positions would be
considered confidential employees if the predominant reason they were chosen by the appointing
authority is the latter's belief that he can share a close intimate relationship with the occupant
which measures freedom of discussion, without fear of embarrassment or misgivings of possible
betrayal of personal trust on confidential matters of state.11

This implies that positions in the civil service of such nature would be limited to those not
separated from the position of the appointing authority by an intervening public officer, or series
of public officers, in the bureaucratic hierarchy. This is an additional reason why the positions of
"City Legal Officer" and "Private Secretary to the President" were considered primarily
confidential by the Court.12 On the other hand, a customs policeman serving in the Harbor Patrol,
in relation to the Commissioner of Customs, and an executive assistant, stenographer, or clerk in
the Office of the President, were not considered so by the Court.13

There is no need to extend the professional relationship to the legal staff which assists the
confidential employer above described. Since the positions occupied by these subordinates are
remote from that of the appointing authority, the element of trust between them is no longer
predominant. The importance of these subordinates to the appointing authority now lies in the
contribution of their legal skills to facilitate the work of the confidential employee. At this level of
the bureaucracy, any impairment of the appointing authority's interest as a client, which may be
caused through the breach of residual trust by any of these lower-ranked lawyers, can be
anticipated and prevented by the confidential employee, as a reasonably competent office head,
through the exercise of his power to "review, approve, reverse, or modify" their acts and
decisions.14 At this level, the client can be protected without need of imposing upon the lower-
ranked lawyers the fiduciary duties inherent in the attorney-client relationship. Hence, there is
now no obstacle to giving full effect to the security of tenure principle to these members of the
civil service.

Thus, with respect to the legal assistants or subordinates of the provincial attorney namely, Cirilo
Gelvezon, Teodolfo Dato-on and Nelson Geduspan, the Cadiente and Besa rulings cannot apply.
To recall, said cases specifically dealt with the positions of city legal officer of the city and chief
legal counsel of the PNB. There was no reference to their legal staff or subordinates. As head of
their respective departments, the city legal officer, the provincial attorney or the PNB chief legal
counsel cannot be likened to their subordinates. The latter have been employed due to their
technical qualifications. Their positions are highly technical in character and not confidential, so
they are permanent employees, and they belong to the category of classified employees under
the Civil Service Law. Thus, the items of Senior Legal Officer and Legal Officer II remain
permanent as classified by the Civil Service Commission. Consequently, the holders of the said
items, being permanent employees, enjoy security of tenure as guaranteed under the
Constitution.
This notwithstanding, petitioners contend that respondents are estopped from protesting the
termination of their services because of their actions which, if taken together, would allegedly
reveal that they have accepted their termination, such as: applying for clearances, not remaining
in office and signing their payroll for March 15, 1988 acknowledging therein that their
appointment "terminated/expired."

We cannot agree with petitioners in this regard. The respondents did the above-mentioned acts
because their services were actually dispensed with by petitioner Governor Griño. As a
consequence of their termination, they could not remain in office and as required of any
government employee who is separated from the government service, they had to apply for
clearances. However, this did not mean that they believed in principle that they were validly
terminated. The same should not prevent them from later on questioning the validity of said
termination.

The facts clearly show that respondents protested their termination with the Civil Service
Commission within a month from the time of their termination. The Court holds that the said
protest was filed within a reasonable period of time.

WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect to the
position of provincial attorney of Iloilo. Respondent Teotimo Arandela is hereby ordered to vacate
said position upon the finality of this Decision. The Decision of the respondent Civil Service
Commission pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan
is hereby AFFIRMED.

SO ORDERED.

[G.R. No. 81467. October 27, 1989.]

NARCISO Y. SANTIAGO, JR., Petitioner, v. CIVIL SERVICE COMMISSION and

LEONARDO A. JOSE, Respondents.

Ambrosio Padilla, Mempin & Reyes Law Offices for Petitioner.

Leonardo A. Jose for himself as private-respondent.

SYLLABUS

1. ADMINISTRATIVE LAW; PUBLIC OFFICERS; APPOINTMENT; PERSONS NEXT-IN-

RANK; NO MANDATORY REQUIREMENT THAT THEY ARE ENTITLED TO PREFERENCE
IN APPOINTMENT. — Our previous ruling in Taduran v. Civil Service Commission (L-
52051, 31 July 1984, 131 SCRA 66) stating that there is "no mandatory nor
peremptory requirement in the (Civil Service Law) that persons next-in-rank are
entitled to preference in appointment. What it does provide is that they would be
among the first to be considered for the vacancy, if qualified, and if the vacancy is
not filled by promotion, the same shall be filled by transfer or other modes of
appointment." One who is next-in-rank is entitled to preferential consideration for
promotion to the higher vacancy but it does not necessarily follow that he and no
one else can be appointed. The rule neither grants a vested right to the holder nor
imposes a ministerial duty on the appointing authority to promote such person to
the next higher position.

2. ID.; ID.; ID.; POWER TO APPOINT, A MATTER OF DISCRETION; APPOINTING

POWER ACCORDED A WIDE RANGE OF CHOICE. — The power to appoint is a matter
of discretion. The appointing power has a wide latitude of choice as to who is best
qualified for the position (Ocampo v. Subido, L-28344, August 27, 1976, 72 SCRA
443). To apply the next-in-rank rule peremptorily would impose a rigid formula on
the appointing power contrary to the policy of the law that among those qualified
and eligible, the appointing authority is granted discretion and prerogative of choice
of the one he deems fit for appointment (Pineda v. Claudio, L-29661 May 13, 1969,
28 SCRA 34).

3. ID.; ID.; ID.; CIVIL SERVICE COMMISSION; POWER TO APPROVE OR DISPROVE

APPOINTMENTS; SCOPE THEREOF. — True, the Commission is empowered to
approve all appointments, whether original or promotional, to positions in the civil
service and disapprove those where the appointees do not possess the appropriate
eligibility or required qualification (paragraph (h), Section 9, P.D. No. 807).
However, consistent with our ruling in Luego v. CSC (L-69137, 5 August 1986, 143
SCRA 327), "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 decree says, "approves" or "disapproves" an appointment made by the
proper authorities. . . . To be sure, it has no authority to revoke the said
appointment simply because it believed that the private respondent was better
qualified for that would have constituted an encroachment on the discretion vested
solely (in the appointing authority)."
cralaw virtua1aw li bra ry

4. ID.; ID.; ID.; MINIMUM QUALIFICATIONS AND STANDARD OF MERIT AND

FITNESS ADEQUATELY SATISFIED. — All told, we fail to see any reason to disturb
SANTIAGO’s promotional appointment. The minimum qualifications and the standard
of merit and fitness have been adequately satisfied as found by the appointing
authority. The latter has not been convincingly shown to have committed any grave
abuse of discretion.

DECISION

MELENCIO-HERRERA, J.:

Resolution No. 87-554 of the Civil Service Commission, dated 28 December 1987,
revoking the promotional appointment of petitioner Narcisco Y. SANTIAGO, Jr., from
Collector of Customs I to Collector of Customs III and directing instead the
appointment of private respondent, Leonardo A. JOSE, to the same position, is
sought to be reviewed and reversed herein.

On 18 November 1986, then Customs Commissioner Wigberto E. Tañada extended a

permanent promotional appointment, as Customs Collector III, to petitioner
SANTIAGO, Jr. That appointment was approved by the Civil Service Commission
(CSC), National Capital Region Office. Prior thereto, SANTIAGO held the position of
Customs Collector I.

On 26 November 1986, respondent JOSE, a Customs Collector II, filed a protest with
the Merit Systems Promotion Board (the Board, for short) against SANTIAGO’s
promotional appointment mainly on the ground that he was next-in-rank to the
position of Collector of Customs III.

Pursuant to Section 19(6) of Presidential Decree No. 807 (the Civil Service Decree),
the Board referred the protest to Commissioner Tañada for appropriate action.

In reply, said official upheld SANTIAGO’s promotional appointment on the grounds,

among others, that: (1) the next-in-rank rule is no longer mandatory; (2) the
protestee is competent and qualified for the position and such fact was not
questioned by the protestant; and (3) existing law and jurisprudence give wide
latitude of discretion to the appointing authority provided there is no clear showing
of grave abuse of discretion or fraud.

On 29 December 1986, respondent JOSE appealed to the Board (MSB Case No.
1410), which, on 17 March 1987, decided to revoke petitioner SANTIAGO’s
appointment and directed that respondent JOSE be appointed in his stead.

On 15 July 1987, the Board resolved to deny SANTIAGO’s Motion for Reconsideration
for lack of merit.

On 28 December 1987, respondent Commission affirmed the Board Resolutions in its

own Resolution No. 87-554. The Commission ruled that although both SANTIAGO
and JOSE are qualified for the position of Customs Collector III, respondent JOSE
has far better qualifications in terms of educational attainment, civil service
eligibilities, relevant seminars and training courses taken, and holding as he does by
permanent appointment a position which is higher in rank and salary range. It added
that the Commission is empowered to administer and enforce the merit system as
mandated by the 1973 and 1987 Constitutions and to approve all appointments,
whether original or promotional, to positions in the civil service, subject to specified
exceptions, pursuant to paragraphs (a) and (h), Section 9 of the Civil Service Law.

Hence, this Certiorari Petition filed by SANTIAGO.

On 10 February 1988 the Second Division issued a Temporary Restraining Order

enjoining respondents from enforcing CSC Resolution No. 87-554. However, on 24
October 1988, for failure to acquire jurisdiction over the person of respondent JOSE,
that Division resolved to dismiss the Petition and lifted the Temporary Restraining
Order. Upon SANTIAGO’s Motion for Reconsideration, the same Division allowed him
a period of thirty (30) days within which to locate respondent JOSE’s present
address. After having been located and furnished this Court’s previous Resolutions,
JOSE manifested his intent to adopt in toto the Comment filed by the Solicitor
General for respondent CSC.

On 4 October 1989, pursuant to an adopted policy, the Second Division referred the
case to the Court en banc.

We grant reconsideration of our Order of dismissal and reinstate the Petition.

After considering the pleadings filed, the constitutional and statutory provisions
invoked, the jurisprudence cited and legal arguments adduced, we are constrained
to reverse.

We need only recall our previous ruling in Taduran v. Civil Service Commission (L-
52051, 31 July 1984, 131 SCRA 66) stating that there is "no mandatory nor
peremptory requirement in the (Civil Service Law) that persons next-in-rank are
entitled to preference in appointment. What it does provide is that they would be
among the first to be considered for the vacancy, if qualified, and if the vacancy is
not filled by promotion, the same shall be filled by transfer or other modes of
appointment." cralaw virtua1aw l ibra ry

One who is next-in-rank is entitled to preferential consideration for promotion to the

higher vacancy but it does not necessarily follow that he and no one else can be
appointed. The rule neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote such person to the next
higher position. As provided for in Section 4, CSC Resolution No. 83-343: jgc:chanrob les.com. ph

"Section 4. An employee who holds a next-in-rank position who is deemed the most
competent and qualified, possesses an appropriate civil service eligibility, and meets
the other conditions for promotion shall be promoted to the higher position when it
becomes vacant.

However, the appointing authority may promote an employee who is not next-in-
rank but who possesses superior qualifications and competence compared to a next-
in-rank employee who merely meets the minimum requirements for the position." cralaw virtua1aw l ibra ry

The former Customs Commissioner had explained the reasons behind petitioner’s
appointment in his reply to the Merit Systems Board, thus: jgc:chanrob les.com. ph

"Suffice it to state that both Jose and the protestee are customs collectors. On 31
January 1984, Jose was assigned to Panganiban, Camarines Norte, but he never
assumed that position. For the past five years, there is no official record of any
activity that recommends him for promotion.

"On the other hand, after the February revolution, the Protestee was immediately
designated by the undersigned as Chief of a task force which has been credited with
the seizure of millions of pesos worth of smuggled shipments. Each one was duly
recorded, not only in the official files, but also in the media.

"For the services, the undersigned saw fit, not only to promote the Protestee but
also to designate him as my special assistant.

"It may likewise be mentioned that Protestee has been the recipient of citations
awarded by the Customs Commissioner for the two consecutive years 1984 and
1985, for exemplary performance of official duties, particularly investigation and
prosecution. More specifically, the latest citation commends the Protestee for his
pivotal role in the seizure and forfeiture of an ocean-going vessel upheld by the
Supreme Court, which constituted a first in the history of this Bureau." cralaw virt ua1aw lib ra ry

The power to appoint is a matter of discretion. The appointing power has a wide
latitude of choice as to who is best qualified for the position (Ocampo v. Subido, L-
28344, August 27, 1976, 72 SCRA 443). To apply the next-in-rank rule peremptorily
would impose a rigid formula on the appointing power contrary to the policy of the
law that among those qualified and eligible, the appointing authority is granted
discretion and prerogative of choice of the one he deems fit for appointment (Pineda
v. Claudio, L-29661 May 13, 1969, 28 SCRA 34).

The case of Meram v. Edralin (L-71228, September 24, 1987, 154 SCRA 238) is
inapplicable to the factual situation herein. In said case, we affirmed the
appointment of the next-in-rank because the original appointee’s appointment was
made in consideration of political, ethnic, religious or blood ties totally against the
very purpose behind the establishment of professionalism in the civil service.

True, the Commission is empowered to approve all appointments, whether original

or promotional, to positions in the civil service and disapprove those where the
appointees do not possess the appropriate eligibility or required qualification
(paragraph (h), Section 9, P.D. No. 807). However, consistent with our ruling in
Luego v. CSC (L-69137, 5 August 1986, 143 SCRA 327), "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 decree says,
"approves" or "disapproves" an appointment made by the proper authorities. . . . To
be sure, it has no authority to revoke the said appointment simply because it
believed that the private respondent was better qualified for that would have
constituted an encroachment on the discretion vested solely (in the appointing
authority)."cralaw virt ua1aw lib rary

All told, we fail to see any reason to disturb SANTIAGO’s promotional appointment.
The minimum qualifications and the standard of merit and fitness have been
adequately satisfied as found by the appointing authority. The latter has not been
convincingly shown to have committed any grave abuse of discretion.

Having arrived at the foregoing conclusion, we find no necessity to delve into the
other issues raised.

WHEREFORE, Resolution No. 87-554 of the Civil Service Commission is SET ASIDE
and petitioner’s promotional appointment as Customs Collector III is hereby
UPHELD. The Temporary Restraining Order heretofore issued, enjoining respondents
from enforcing CSC Resolution No. 87-554, is hereby made permanent.

SO ORDERED.
Facts: Customs Commissioner Wigberto Tanada appointed Santiago from Collector of
Customs I to Collector of Customs III. Respondent Jose, a Customs Collector II, filed a
protest with the Merit Systems Promotion Board against Santiago's promotional
appointment mainly on the ground that he was next-in-rank to the position of Collector of
Customs III. The Board decided to revoke Santiago's appointment and directed that Jose
be appointed in his stead. The Civil Service Commission affirmed the Board Resolution. The
Commission ruled that respondent Jose has far better qualifications in terms of educational
attainment, civil service eligibilities, relevant seminars and training courses taken. It added
that the Commission is empowered to administer and enforce the merit system as
mandated by the Constitution and to approve all appointments, whether original or
promotional, to positions in the civil service. Thus, Santiago appealed.

Issue:

Should Santiago's promotional appointment be upheld?

Held:
Yes. There is "no mandatory nor peremptory requirement in the Civil Service Law that
persons next-in-rank are entitled to preference in appointment. What it does provide is that
they would be among the first to be considered for the vacancy, if qualified, and if the
vacancy is not filled by promotion, the same shall be filled by transfer or other modes of
appointment."

One who is next-in-rank is entitled to preferential consideration for promotion to the higher
vacancy but it does not necessarily follow that he and no one else can be appointed. The
rule neither grants a vested right to the holder nor imposes a ministerial duty on the
appointing authority to promote such person to the next higher position.

The power to appoint is a matter of discretion. The appointing power has a wide latitude of
choice as to who is best qualified for the position. To apply the next-in-rank rule
peremptorily would impose a rigid formula on the appointing power contrary to the policy
of the law that among those qualified and eligible, the appointing authority is granted
discretion and prerogative of choice of the one he deems fit for appointment.

True, the Commission is empowered to approve all appointments, whether original or

promotional, to positions in the civil service and disapprove those where the appointees do
not possess the appropriate eligibility or required qualification. However, "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 decree says, "approves" or "disapproves" an
appointment made by the proper authorities. ...To be sure, it has no authority to revoke the
said appointment simply because it believed that the private respondent was better
qualified for that would have constituted an encroachment on the discretion vested solely
in the appointing authority."

There is no reason to disturb Santiago's promotional appointment. The minimum

qualifications and the standard of merit and fitness have been adequately satisfied as found
by the appointing authority. The latter has not been convincingly shown to have committed
any grave abuse of discretion. (Santiago vs. CSC, G.R. No. 81467, October 27, 1989)

G.R. No. 170132 December 6, 2006

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his

capacity as GSIS President & General Manager, petitioners,
vs.
KAPISANAN NG MGA MANGGAGAWA SA GSIS, respondents.

DECISION
GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government
Service Insurance System (GSIS) and its President and General Manager Winston F. Garcia
(Garcia, for short) assail and seek to nullify the Decision1 dated June 16, 2005 of the Court of
Appeals (CA) in CA-G.R. SP No. 87220, as reiterated in its Resolution2 of October 18, 2005
denying Garcia's motion for reconsideration.

The recourse is cast against the following setting:

A four-day October 2004 concerted demonstration, rallies and en masse walkout waged/held in
front of the GSIS main office in Roxas Boulevard, Pasay City, started it all. Forming a huge part
of the October 4 to October 7, 2004 mass action participants were GSIS personnel, among them
members of the herein respondent Kapisanan Ng Mga Manggagawa sa GSIS ("KMG" or the
"Union"), a public sector union of GSIS rank-and-file employees. Contingents from other
government agencies joined causes with the GSIS group. The mass action's target appeared to
have been herein petitioner Garcia and his management style. While the Mayor of Pasay City
allegedly issued a rally permit, the absence of the participating GSIS employees was not covered
by a prior approved leave.3

On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a
memorandum directing 131 union and non-union members to show cause why they should not
be charged administratively for their participation in said rally. In reaction, KMG's counsel, Atty.
Manuel Molina, sought reconsideration of said directive on the ground, among others, that the
subject employees resumed work on October 8, 2004 in obedience to the return-to-work order
thus issued. The plea for reconsideration was, however, effectively denied by the filing, on
October 25, 2004, of administrative charges against some 110 KMG members for grave
misconduct and conduct prejudicial to the best interest of the service.4

What happened next is summarized by the CA in its challenged decision of June 16, 2005, albeit
the herein petitioners would except from some of the details of the appellate court's narration:

Ignoring said formal charges, KMG, thru its President, Albert Velasco, commenced the
instant suit on November 2, 2004, with the filing of the Petition for Prohibition at bench.
On the ground that its members should not be made to explain why they supported their
union's cause, petitioner [KMG] faulted respondent [Garcia] with blatant disregard of Civil
Service Resolution No. 021316, otherwise known as the Guidelines for Prohibited Mass
Action, Section 10 of which exhorts government agencies to "harness all means within
their capacity to accord due regard and attention to employees' grievances and facilitate
their speedy and amicable disposition through the use of grievance machinery or any
other modes of settlement sanctioned by law and existing civil service rules." Two
supplements to the foregoing petition were eventually filed by KMG. The first, … apprised
[the CA] of the supposed fact that its Speaker, Atty. Molina, had been placed under
preventive suspension for 90 days and that the formal charges thus filed will not only
deprive its members of the privileges and benefits due them but will also disqualify them
from promotion, step increment adjustments and receipt of monetary benefits, including
their 13th month pay and Christmas bonuses. The second, xxx manifested that, on
December 17, 2004, respondent [Garcia] served a spate of additional formal charges
against 230 of KMG's members for their participation in the aforesaid grievance
demonstrations.

In his December 14, 2004 comment to the foregoing petition, respondent [Garcia]
averred that the case at bench was filed by an unauthorized representative in view of the
fact that Albert Velasco had already been dropped from the GSIS rolls and, by said
token, had ceased to be a member – much less the President – of KMG. Invoking the
rule against forum shopping, respondent [Garcia] called [the CA's] attention to the
 supposed fact that the allegations in the subject petition merely duplicated those already
set forth in two petitions for certiorari and prohibition earlier filed by Albert Velasco ….
Because said petitions are, in point of fact, pending before this court as CA-G.R. SP Nos.
86130 and 86365, respondent [Garcia] prayed for the dismissal of the petition at
bench ….5 (Words in bracket added.)

It appears that pending resolution by the CA of the KMG petition for prohibition in this case, the
GSIS management proceeded with the investigation of the administrative cases filed. As
represented in a pleading before the CA, as of May 18, 2005, two hundred seven (207) out of the
two hundred seventy eight (278) cases filed had been resolved, resulting in the exoneration of
twenty (20) respondent-employees, the reprimand of one hundred eighty two (182) and the
suspension for one month of five (5).6

On June 16, 2005, the CA rendered the herein assailed decision7 holding that Garcia's "filing of
administrative charges against 361 of [KMG's] members is tantamount to grave abuse of
discretion which may be the proper subject of the writ of prohibition." Dispositively, the decision
reads:

WHEREFORE, premises considered, the petition [of KMG] is GRANTED and respondent
[Winston F. Garcia] is hereby PERPETUALLY ENJOINED from implementing the issued
formal charges and from issuing other formal charges arising from the same facts and
events.

SO ORDERED. (Emphasis in the original)

Unable to accept the above ruling and the purported speculative factual and erroneous legal
premises holding it together, petitioner Garcia sought reconsideration. In its equally assailed
Resolution8 of October 18, 2005, however, the appellate court denied reconsideration of its
decision.

Hence, this recourse by the petitioners ascribing serious errors on the appellate court in granting
the petition for prohibition absent an instance of grave abuse of authority on their part.

We resolve to GRANT the petition.

It should be stressed right off that the civil service encompasses all branches and agencies of the
Government, including government-owned or controlled corporations (GOCCs) with original
charters, like the GSIS,9 or those created by special law.10 As such, employees of covered
GOCCs are part of the civil service system and are subject to circulars, rules and regulations
issued by the Civil Service Commission (CSC) on discipline, attendance and general
terms/conditions of employment, inclusive of matters involving self-organization, strikes,
demonstrations and like concerted actions. In fact, policies established on public sector unionism
and rules issued on mass action have been noted and cited by the Court in at least a
case.11 Among these issuances is Executive Order (EO) No. 180, series of 1987, providing
guidelines for the exercise of the right to organize of government employees. Relevant also is
CSC Resolution No. 021316 which provides rules on prohibited concerted mass actions in the
public sector.

There is hardly any dispute about the formal charges against the 278 affected GSIS employees –
a mix of KMG union and non-union members - having arose from their having gone on
unauthorized leave of absence (AWOL) for at least a day or two in the October 4 to 7, 2004
stretch to join the ranks of the demonstrators /rallyists at that time. As stated in each of the formal
charges, the employee's act of attending, joining, participating and taking part in the strike/rally is
a transgression of the rules on strike in the public sector. The question that immediately comes to
the fore, therefore, is whether or not the mass action staged by or participated in by said GSIS
employees partook of a strike or prohibited concerted mass action. If in the affirmative, then the
denounced filing of the administrative charges would be prima facie tenable, inasmuch as
engaging in mass actions resulting in work stoppage or service disruption constitutes, in the
minimum, the punishable offense of acting prejudicial to the best interest of the service.12 If in the
negative, then such filing would indeed smack of arbitrariness and justify the issuance of a
corrective or preventive writ.

Petitioners assert that the filing of the formal charges are but a natural consequence of the
service-disrupting rallies and demonstrations staged during office hours by the absenting GSIS
employees, there being appropriate issuances outlawing such kinds of mass action. On the other
hand, the CA, agreeing with the respondent's argument, assumed the view and held that the
organized demonstrating employees did nothing more than air their grievances in the exercise of
their "broader rights of free expression"13 and are, therefore, not amenable to administrative
sanctions. For perspective, following is what the CA said:

Although the filing of administrative charges against [respondent KMG's] members is well
within [petitioner Garcia's] official [disciplinary] prerogatives, [his] exercise of the power
vested under Section 45 of Republic Act No. 8291 was tainted with arbitrariness and
vindictiveness against which prohibition was sought by [respondent]. xxx the fact that the
subject mass demonstrations were directed against [Garcia's] supposed mismanagement
of the financial resources of the GSIS, by and of itself, renders the filing of administrative
charges against [KMG's] member suspect. More significantly, we find the gravity of the
offenses and the sheer number of persons … charged administratively to be, at the very
least, antithetical to the best interest of the service….

It matters little that, instead of the 361 alleged by petitioner, only 278 charges were
actually filed [and] in the meantime, disposed of and of the said number, 20 resulted to
exoneration, 182 to reprimand and 5 to the imposition of a penalty of one month
suspension. Irrespective of their outcome, the severe penalties prescribed for the offense
with which petitioner's members were charged, to our mind, bespeak of bellicose and
castigatory reaction …. The fact that most of the employees [Garcia] administratively
charged were eventually meted with what appears to be a virtual slap on the wrist even
makes us wonder why respondent even bothered to file said charges at all. xxx.

Alongside the consequences of the right of government employees to form, join or assist
employees organization, we have already mentioned how the broader rights of free
expression cast its long shadow over the case. xxx we find [petitioner Garcia's] assailed
acts, on the whole, anathema to said right which has been aptly characterized as
preferred, one which stands on a higher level than substantive economic and other
liberties, the matrix of other important rights of our people. xxx.14 (Underscoring and
words in bracket added; citations omitted.)

While its decision and resolution do not explicitly say so, the CA equated the right to form
associations with the right to engage in strike and similar activities available to workers in the
private sector. In the concrete, the appellate court concluded that inasmuch as GSIS employees
are not barred from forming, joining or assisting employees' organization, petitioner Garcia could
not validly initiate charges against GSIS employees waging or joining rallies and demonstrations
notwithstanding the service-disruptive effect of such mass action. Citing what Justice Isagani
Cruz said in Manila Public School Teachers Association [MPSTA] v. Laguio, Jr.,15 the appellate
court declared:

It is already evident from the aforesaid provisions of Resolution No. 021316 that
employees of the GSIS are not among those specifically barred from forming, joining or
assisting employees organization such as [KMG]. If only for this ineluctable fact, the merit
of the petition at bench is readily discernible.16
We are unable to lend concurrence to the above CA posture. For, let alone the fact that it ignores
what the Court has uniformly held all along, the appellate court's position is contrary to what
Section 4 in relation to Section 5 of CSC Resolution No. 02131617 provides. Besides, the
appellate court's invocation of Justice Cruz's opinion in MPSTA is clearly off-tangent, the good
Justice's opinion thereat being a dissent. It may be, as the appellate court urged¸ that the
freedom of expression and assembly and the right to petition the government for a redress of
grievances stand on a level higher than economic and other liberties. Any suggestion, however,
about these rights as including the right on the part of government personnel to strike ought to
be, as it has been, trashed. We have made this abundantly clear in our past determinations. For
instance, in Alliance of Government Workers v. Minister of Labor and Employment,18 a case
decided under the aegis of the 1973 Constitution, an en banc Court declared that it would be
unfair to allow employees of government corporations to resort to concerted activity with the ever
present threat of a strike to wring benefits from Government. Then came the 1987 Constitution
expressly guaranteeing, for the first time, the right of government personnel to self-
organization19 to complement the provision according workers the right to engage in "peaceful
concerted activities, including the right to strike in accordance with law."20

It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the Court
resolved Bangalisan v. Court of Appeals.21 In it, we held, citing MPSTA v. Laguio, Jr.,22 that
employees in the public service may not engage in strikes or in concerted and unauthorized
stoppage of work; that the right of government employees to organize is limited to the formation
of unions or associations, without including the right to strike.

Jacinto v. Court of Appeals23 came next and there we explained:

Specifically, the right of civil servants to organize themselves was positively recognized in
Association of Court of Appeals Employees vs. Ferrer-Caleja. But, as in the exercise of
the rights of free expression and of assembly, there are standards for allowable
limitations such as the legitimacy of the purpose of the association, [and] the overriding
considerations of national security . . . .

As regards the right to strike, the Constitution itself qualifies its exercise with the
provision "in accordance with law." This is a clear manifestation that the state may, by
law, regulate the use of this right, or even deny certain sectors such right. Executive
Order 180 which provides guidelines for the exercise of the right of government workers
to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under
pain of administrative sanctions, all government officers and employees from staging
strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will
result in temporary stoppage or disruption of public service" by stating that the Civil
Service law and rules governing concerted activities and strikes in government service
shall be observed. (Emphasis and words in bracket added; citations omitted)

And in the fairly recent case of Gesite v. Court of Appeals,24 the Court defined the limits of the
right of government employees to organize in the following wise:

It is relevant to state at this point that the settled rule in this jurisdiction is that employees
in the public service may not engage in strikes, mass leaves, walkouts, and other forms
of mass action that will lead in the temporary stoppage or disruption of public service.
The right of government employees to organize is limited to the formation of unions or
associations only, without including the right to strike,

adding that public employees going on disruptive unauthorized absences to join concerted mass
actions may be held liable for conduct prejudicial to the best interest of the service.
Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the negative
the poser of whether or not the right of government employees to self-organization also includes
the right to strike, stated:

When we proposed this amendment providing for self organization of government

employees, it does not mean that because they have the right to organize, they have also
the right to strike. That is a different matter. xxx25

With the view we take of the events that transpired on October 4-7, 2004, what respondent's
members launched or participated in during that time partook of a strike or, what contextually
amounts to the same thing, a prohibited concerted activity. The phrase "prohibited concerted
activity" refers to any collective activity undertaken by government employees, by themselves or
through their employees' organization, with the intent of effecting work stoppage or service
disruption in order to realize their demands or force concessions, economic or otherwise; it
includes mass leaves, walkouts, pickets and acts of similar nature.26 Indeed, for four straight
days, participating KMG members and other GSIS employees staged a walk out and waged or
participated in a mass protest or demonstration right at the very doorstep of the GSIS main office
building. The record of attendance27 for the period material shows that, on the first day of the
protest, 851 employees, or forty eight per cent (48%) of the total number of employees in the
main office (1,756) took to the streets during office hours, from 6 a.m. to 2 p.m.,28 leaving the
other employees to fend for themselves in an office where a host of transactions take place every
business day. On the second day, 707 employees left their respective work stations, while 538
participated in the mass action on the third day. A smaller number, i.e., 306 employees, but by no
means an insignificant few, joined the fourth day activity.

To say that there was no work disruption or that the delivery of services remained at the usual
level of efficiency at the GSIS main office during those four (4) days of massive walkouts and
wholesale absences would be to understate things. And to place the erring employees beyond
the reach of administrative accountability would be to trivialize the civil service rules, not to
mention the compelling spirit of professionalism exacted of civil servants by the Code of Conduct
and Ethical Standards for Public Officials and Employees. 29

The appellate court made specific reference to the "parliament of the streets," obviously to lend
concurrence to respondent's pretension that the gathering of GSIS employees on October 4-7,
2004 was an "assembly of citizens" out only to air grievances, not a striking crowd. According to
the respondent, a strike presupposes a mass action undertaken to press for some economic
demands or secure additional material employment benefits.

We are not convinced.

In whatever name respondent desires to call the four-day mass action in October 2004, the
stubborn fact remains that the erring employees, instead of exploring non-crippling activities
during their free time, had taken a disruptive approach to attain whatever it was they were
specifically after. As events evolved, they assembled in front of the GSIS main office building
during office hours and staged rallies and protests, and even tried to convince others to join their
cause, thus provoking work stoppage and service-delivery disruption, the very evil sought to be
forestalled by the prohibition against strikes by government personnel.30

The Court can concede hypothetically that the protest rally and gathering in question did not
involve some specific material demand. But then the absence of such economic-related demand,
even if true, did not, under the premises, make such mass action less of a prohibited concerted
activity. For, as articulated earlier, any collective activity undertaken by government employees
with the intent of effecting work stoppage or service disruption in order to realize their demands
or force concessions, economic or otherwise, is a prohibited concerted mass action31 and
doubtless actionable administratively. Bangalisan even went further to say the following: "[i]n the
absence of statute, public employees do not have the right to engage in concerted work
stoppages for any purpose."

To petitioner Garcia, as President and General Manager of GSIS, rests the authority and
responsibility, under Section 45 of Republic Act No. 8291, the GSIS Act of 1997, to remove,
suspend or otherwise discipline GSIS personnel for cause.32 At bottom then, petitioner Garcia, by
filing or causing the filing of administrative charges against the absenting participants of the
October 4-7, 2004 mass action, merely performed a duty expected of him and enjoined by law.
Regardless of the mood petitioner Garcia was in when he signed the charge sheet, his act can
easily be sustained as legally correct and doubtless within his jurisdiction.

It bears to reiterate at this point that the GSIS employees concerned were proceeded against -
and eventually either exonerated, reprimanded or meted a one-month suspension, as the case
may be - not for the exercise of their right to assemble peacefully and to petition for redress of
grievance, but for engaging in what appeared to be a prohibited concerted activity. Respondent
no less admitted that its members and other GSIS employees might have disrupted public
service.33

To be sure, arbitrariness and whimsical exercise of power or, in fine, grave abuse of discretion
on the part of petitioner Garcia cannot be simplistically inferred from the sheer number of those
charged as well as the gravity or the dire consequences of the charge of grave misconduct and
conduct prejudicial to the best interest of the service, as the appellate court made it to appear.
The principle of accountability demands that every erring government employee be made
answerable for any malfeasance or misfeasance committed. And lest it be overlooked, the mere
filing of formal administrative case, regardless of the gravity of the offense charged, does not
overcome the presumptive innocence of the persons complained of nor does it shift the burden of
evidence to prove guilt of an administrative offense from the complainant.

Moreover, the Court invites attention to its holding in MPSTA v. Laguio, Jr., a case involving over
800 public school teachers who took part in mass actions for which the then Secretary of
Education filed administrative complaints on assorted charges, such as gross misconduct. Of
those charged, 650 were dismissed and 195 suspended for at least six (6) months The Court,
however, did not consider the element of number of respondents thereat and/or the dire
consequences of the charge/s as fatally vitiating or beclouding the bona fides of the Secretary of
Education's challenged action. Then as now, the Court finds the filing of charges against a large
number of persons and/or the likelihood that they will be suspended or, worse, dismissed from
the service for the offense as indicating a strong and clear case of grave abuse of authority to
justify the issuance of a writ of prohibition.

The appellate court faulted petitioner Garcia for not first taping existing grievance machinery and
other modes of settlement agreed upon in the GSIS-KMG Collective Negotiations Agreement
(CAN) before going full steam ahead with his formal charges.34

The Court can plausibly accord cogency to the CA's angle on grievance procedure but for the
fact that it conveniently disregarded what appears to be the more relevant provision of the CNA.
We refer to Article VI which reads:

The GSIS Management and the KMG have mutually agreed to promote the principle of
shared responsibility … on all matters and decisions affecting the rights, benefits and
interests of all GSIS employees …. Accordingly, … the parties also mutually agree
that the KMG shall not declare a strike nor stage any concerted action which will disrupt
public service and the GSIS management shall not lockout employees who are members
of the KMG during the term of this agreement. GSIS Management shall also respect the
rights of the employees to air their sentiments through peaceful concerted activities
during allowable hours, subject to reasonable office rules ....35 (Underscoring added)
If the finger of blame, therefore, is to be pointed at someone for non-exhaustion of less
confrontational remedies, it should be at the respondent union for spearheading a concerted
mass action without resorting to available settlement mechanism. As it were, it was KMG, under
Atty. Alberto Velasco, which opened fire first. That none of the parties bothered to avail of the
grievance procedures under the GSIS-KMG CNA should not be taken against the GSIS. At best,
both GSIS management and the Union should be considered as in pari delicto.

With the foregoing disquisitions, the Court finds it unnecessary to discuss at length the legal
standing of Alberto Velasco to represent the herein respondent union and to initiate the
underlying petition for prohibition. Suffice it to state that Velasco, per Joint Resolution No. 04-10-
01 approved on October 5, 2004 by the KMG Joint Executive-Legislative Assembly, had ceased
to be member, let alone president, of the KMG, having previously been dropped from the rolls of
GSIS employees.36 While the dropping from the rolls is alleged to have been the subject of a CA-
issued temporary restraining order (TRO), the injunction came after Atty. Velasco had in fact
been separated from the service and it appears that the TRO had already expired.

As a final consideration, the Court notes or reiterates the following relevant incidents surrounding
the disposition of the case below:

1. The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even
going to the extent of describing as "instructive and timely" a portion, when the majority
opinion thereat, which the appellate court ignored, is the controlling jurisprudence.

2. The CA gave prominence to dispositions and rattled off holdings37 of the Court, which
appropriately apply only to strikes in the private industry labor sector, and utilized the
same as springboard to justify an inference of grave abuse of discretion. On the other
hand, it only gave perfunctory treatment if not totally ignored jurisprudence that squarely
dealt with strikes in the public sector, as if the right to strike given to unions in private
corporations/entities is necessarily applicable to civil service employees.

3. As couched, the assailed CA decision perpetually bars respondent Garcia – and

necessarily whoever succeeds him as GSIS President – not only from implementing the
formal charges against GSIS employees who participated in the October 4 - 7, 2004
mass action but also from issuing other formal charges arising from the same events.
The injunction was predicated on a finding that grave abuse of discretion attended the
exercise of petitioner Garcia's disciplinary power vested him under Section 45 of RA
8291.38 At bottom then, the assailed decision struck down as a nullity, owing to the
alleged attendant arbitrariness, not only acts that have already been done, but those yet
to be done. In net effect, any formal charge arising from the October 4-7, 2004 incident
is, under any and all circumstances, prejudged as necessarily tainted with arbitrariness to
be slain at sight.

The absurdities and ironies easily deducible from the foregoing situations are not lost on the
Court.

We close with the observation that the assailed decision and resolution, if allowed to remain
undisturbed, would likely pave the way to the legitimization of mass actions undertaken by civil
servants, regardless of their deleterious effects on the interest of the public they have sworn to
serve with loyalty and efficiency. Worse still, it would permit the emergence of a system where
public sector workers are, as the petitioners aptly put it, "immune from the minimum reckoning for
acts that [under settled jurisprudence] are concededly unlawful." This aberration would be
intolerable.

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals

are REVERSED and SET ASIDE and the writ of prohibition issued by that court is NULLIFIED.
No Cost.

SO ORDERED.

G.R. No. 170132 December 6, 2006

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and

WINSTON F. GARCIA, in his capacity as GSIS President &
General Manager, petitioners,
vs.
KAPISANAN NG MGA MANGGAGAWA SA GSIS, respondents.
FACTS: Forming a huge part of the October 4 to October 7, 2004 mass action
participants were GSIS personnel, among them members of the herein
respondent Kapisanan Ng Mga Manggagawa sa GSIS (“KMG” or the “Union”), a
public sector union of GSIS rank-and-file employees.
On or about October 10, 2004, the manager of the GSIS Investigating Unit
issued a memorandum directing 131 union and non-union members to show
cause why they should not be charged administratively for their participation
in said rally. In reaction, KMG’s counsel, Atty. Manuel Molina, sought
reconsideration of said directive on the ground, among others, that the subject
employees resumed work on October 8, 2004 in obedience to the return-to-
work order thus issued. The plea for reconsideration was, however, effectively
denied by the filing, on October 25, 2004, of administrative charges
against some 110 KMG members for grave misconduct and
conduct prejudicial to the best interest of the service.
KMG filed a petition for prohibition with the CA against these charges. The CA
granted the petition and enjoined the GSIS from implementing the issued
formal charges and from issuing other formal charges arising from the same
facts and events.
CA equated the right to form associations with the right to engage in strike
and similar activities available to workers in the private sector. In the
concrete, the appellate court concluded that inasmuch as GSIS employees are
not barred from forming, joining or assisting employees’ organization,
petitioner Garcia could not validly initiate charges against GSIS employees
waging or joining rallies and demonstrations notwithstanding the service-
disruptive effect of such mass action.
ISSUE: WON the strike conducted by the GSIS employees were valid
HELD: NO
The 1987 Constitution expressly guaranteeing, for the first time, the right of
government personnel to self-organization to complement the provision
according workers the right to engage in “peaceful concerted activities,
including the right to strike in accordance with law.”. It was against the
backdrop of the aforesaid provisions of the 1987 Constitution that the Court
resolved Bangalisan v. Court of Appeals. In it, we held, citing MPSTA v. Laguio,
Jr., that employees in the public service may not engage in strikes
or in concerted and unauthorized stoppage of work; that the
right of government employees to organize is limited to the
formation of unions or associations, without including the right
to strike.
Specifically, the right of civil servants to organize themselves was positively
recognized in Association of Court of Appeals Employees vs. Ferrer-Caleja.
But, as in the exercise of the rights of free expression and of assembly, there
are standards for allowable limitations such as the legitimacy of the
purpose of the association, [and] the overriding considerations of national
security.
As regards the right to strike, the Constitution itself qualifies its exercise with
the provision “in accordance with law.” This is a clear manifestation that the
state may, by law, regulate the use of this right, or even deny certain sectors
such right. Executive Order 180 which provides guidelines for the exercise of
the right of government workers to organize, for instance, implicitly endorsed
an earlier CSC circular which “enjoins under pain of administrative sanctions,
all government officers and employees from staging strikes, demonstrations,
mass leaves, walkouts and other forms of mass action which will result in
temporary stoppage or disruption of public service” by stating that the Civil
Service law and rules governing concerted activities and strikes in
government service shall be observed.
Public employees going on disruptive unauthorized absences to join
concerted mass actions may be held liable for conduct prejudicial to the best
interest of the service.
With the view we take of the events that transpired on October 4-7, 2004,
what respondent’s members launched or participated in during that time
partook of a strike or, what contextually amounts to the same thing, a
prohibited concerted activity. The phrase “prohibited concerted activity” refers
to any collective activity undertaken by government employees, by
themselves or through their employees’ organization, with the intent of
effecting work stoppage or service disruption in order to realize their
demands or force concessions, economic or otherwise; it includes mass leaves,
walkouts, pickets and acts of similar nature. Indeed, for four straight days,
participating KMG members and other GSIS employees staged a walk out and
waged or participated in a mass protest or demonstration right at the very
doorstep of the GSIS main office building. The record of attendance for the
period material shows that, on the first day of the protest, 851 employees,
or forty eight per cent (48%) of the total number of employees in the main office
(1,756) took to the streets during office hours, from 6 a.m. to 2 p.m.,leaving
the other employees to fend for themselves in an office where a host of
transactions take place every business day. On the second day, 707 employees
left their respective work stations, while 538 participated in the mass action
on the third day. A smaller number, i.e., 306 employees, but by no means an
insignificant few, joined the fourth day activity.
In whatever name respondent desires to call the four-day mass action in
October 2004, the stubborn fact remains that the erring employees, instead of
exploring non-crippling activities during their free time, had taken a
disruptive approach to attain whatever it was they were specifically after. As
events evolved, they assembled in front of the GSIS main office building during
office hours and staged rallies and protests, and even tried to convince others
to join their cause, thus provoking work stoppage and service-delivery
disruption, the very evil sought to be forestalled by the prohibition against
strikes by government personnel.
To petitioner Garcia, as President and General Manager of GSIS, rests the
authority and responsibility, under Section 45 of Republic Act No. 8291,
the GSIS Act of 1997, to remove, suspend or otherwise discipline GSIS
personnel for cause. At bottom then, petitioner Garcia, by filing or causing the
filing of administrative charges against the absenting participants of the
October 4-7, 2004 mass action, merely performed a duty expected of him and
enjoined by law. Regardless of the mood petitioner Garcia was in when he
signed the charge sheet, his act can easily be sustained as legally correct and
doubtless within his jurisdiction.
by B Estilo

RICARDO T. GLORIA v. CA, GR No. 119903, 2000-08-15

Facts:
petitioner [private respondent herein] was appointed Schools Division Superintendent,
Division of City Schools, Quezon City, by the then President Corazon C. Aquino.
respondent Secretary Gloria recommended to the President of the Philippines that the
petitioner be reassigned as Superintendent of the MIST [Marikina Institute of Science
and Technology], to fill up the vacuum created by the retirement of its
Superintendent,... President approved the recommendation... copy of the
recommendation for petitioner's reassignment, as approved by the President, was
transmitted by Secretary Gloria to Director Rosas for implementation.
On October 14, 1994, Director Rosas, informed the petitioner of his reassignment,
effective October 17, 1994.
Petitioner requested respondent Secretary Gloria to reconsider the reassignment, but
the latter denied the request. The petitioner prepared a letter dated October 18, 1994 to
the President of the Philippines, asking for a reconsideration of his reassignment,... he
subsequently changed his mind and refrained from filing the letter... petitioner filed the
instant petition.
Court of Appeals denied private respondent's prayer for the issuance of a Temporary
Restraining Order (TRO).[3]
On November 22, 1994, it set aside its earlier resolution denying the prayer for the
issuance of a TRO; and thereafter, restrained the petitioners "from implementing the re-
assignment of the petitioner [private respondent herein] from incumbent Schools Division
Superintendent... of Quezon City to Vocational Schools Superintendent of the Marikina
Institute of Science and Technology."... hereby declared to be violative of petitioner's
right to security of tenure, and the respondents are hereby prohibited from implementing
the... same.
Petitioners are now before the Court seeking relief from the decision of the appellate
court,
Issues:
FILED AGAINST PETITIONERS BUT ACTUALLY QUESTIONING AN ACT
OF THE PRESIDENT.
whether the reassignment of private respondent from School Division Superintendent of
Quezon City to Vocational School Superintendent of MIST is violative of his security of
tenure? Petitioners maintain that there is no violation of... security of tenure involved.
Ruling:
Petitioners theorize that the present petition for prohibition is improper because the
same attacks an act of the President, in violation of the doctrine of presidential immunity
from suit.
petition is directed against petitioners and not against the President. The questioned
acts are those of petitioners and not of the President. Furthermore, presidential
decisions may be questioned before the... courts where there is grave abuse of
discretion or that the President acted without or in excess of jurisdiction.[
Private respondent has clearly averred that the petitioners acted with grave abuse of
discretion amounting to lack of jurisdiction and/or excess of jurisdiction in reassigning
the... private respondent in a way that infringed upon his security of tenure. And
petitioners themselves admitted that their questioned act constituted a ministerial duty,
such that they could be subject to charges of insubordination if they did not comply with
the presidential order.
doctrine enunciated in Bentain vs. Court of Appeals[10] -- that "a reassignment that is
indefinite and results in a reduction in rank, status and salary, is in effect, a constructive
removal from the service"
After a careful study, the Court upholds the finding of the respondent court that the
reassignment of petitioner to MIST "appears to be indefinite".
there is nothing in the said Memorandum to show that the reassignment of private
respondent is temporary or would only last until a permanent replacement is found as no
period is specified or fixed; which fact... evinces an intention on the part of petitioners to
reassign private respondent with no definite period or duration. Such feature of the
reassignment in question is definitely violative of the security of tenure of the private
respondent.
"Security of tenure is a fundamental and constitutionally guaranteed feature of our civil
service.
petition is hereby DENIED
THIRD DIVISION
 [G.R. No. 119903. August 15, 2000.]

HON. RICARDO T. GLORIA, in his capacity as SECRETARY, AND DIRECTOR

NILO L. ROSAS in his capacity as REGIONAL DIRECTOR, DEPARTMENT OF
EDUCATION, CULTURE AND SPORTS, Petitioners, v. HON. COURT OF
APPEALS AND DR. BIENVENIDO A. ICASIANO, Respondents.

DECISION

PURISIMA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court brought
by Secretary and the Director for the National Capital Region of the Department of
Education, Culture and Sports (DECS), to question the decision 1 of the Court of
Appeals in CA-G.R. SP No. 35505. chanrob1es v irt ua1 1aw 1 ibra ry

The Court of Appeals found the facts as follows: jgc:chanrobles. com.ph

"On June 29, 1989, petitioner [private respondent herein] was appointed Schools
Division Superintendent, Division of City Schools, Quezon City, by the then President
Corazon C. Aquino.

On October 10, 1994, respondent Secretary Gloria recommended to the President of

the Philippines that the petitioner be reassigned as Superintendent of the MIST
[Marikina Institute of Science and Technology], to fill up the vacuum created by the
retirement of its Superintendent, Mr. Bannaoag F. Lauro, on June 17,1994.

On October 12, 1994, the President approved the recommendation of Secretary

Gloria.

On October 13, 1994, a copy of the recommendation for petitioner’s reassignment,

as approved by the President, was transmitted by Secretary Gloria to Director Rosas
for implementation.

On October 14, 1994, Director Rosas, informed the petitioner of his reassignment,
effective October 17, 1994.

Petitioner requested respondent Secretary Gloria to reconsider the reassignment,

but the latter denied the request. The petitioner prepared a letter dated October 18,
1994 to the President of the Philippines, asking for a reconsideration of his
reassignment, and furnished a copy of the same to the DECS. However, he
subsequently changed his mind and refrained from filing the letter with the Office of
President.

On October 19, 1994, the petitioner filed the instant petition." 2

On October 26, 1994, the Court of Appeals denied private respondent’s prayer for
the issuance of a Temporary Restraining Order (TRO). 3

On November 22, 1994, it set aside its earlier resolution denying the prayer for the
issuance of a TRO; and thereafter, restrained the petitioners "from implementing the
re-assignment of the petitioner [private respondent herein] from incumbent Schools
Division Superintendent of Quezon City to Vocational Schools Superintendent of the
Marikina Institute of Science and Technology." 4

On December 21, 1994, the Court of Appeals issued another resolution setting the
hearing of the petition for the issuance of a writ of preliminary injunction and
enjoining the petitioners from implementing the reassignment of the
private Respondent.

On March 28, 1995, it issued its assailed decision; holding as follows: jgc:chanro bles. com.ph

"WHEREFORE, for lack of a period or any indication that it is only temporary, the
reassignment of the petitioner from Schools Division Superintendent, Division of City
Schools, Quezon City, to Vocational Schools Superintendent of the Marikina Institute
of Science and Technology pursuant to the Memorandum of Secretary Ricardo T.
Gloria to the President of the Philippines dated 10 October 1994, is hereby declared
to be violative of petitioner’s right to security of tenure, and the respondents are
hereby prohibited from implementing the same.

SO ORDERED." 5

Petitioners are now before the Court seeking relief from the decision of the appellate
court, contending that:chanrob1es vi rt ua1 1aw 1i bra ry

RESPONDENT COURT OF APPEALS HAS ALLOWED ITSELF TO BE INSTRUMENTAL IN

PRIVATE RESPONDENT’S CIRCUMVENTION OF THE PRESIDENTIAL IMMUNITY FROM
SUIT BY GIVING DUE COURSE AND GRANTING RELIEFS PRAYED FOR IN A SUIT
PURPORTEDLY FILED AGAINST PETITIONERS BUT ACTUALLY QUESTIONING AN ACT
OF THE PRESIDENT.

II

RESPONDENT COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A

WAY NOT IN ACCORD WITH LAW OR APPLICABLE DECISIONS OF THE SUPREME
COURT. 6

The pivotal issue for resolution here is whether the reassignment of private
respondent from School Division Superintendent of Quezon City to Vocational School
Superintendent of MIST is violative of his security of tenure? Petitioners maintain
that there is no violation of security of tenure involved. Private respondent maintains
otherwise.

In taking favorable action on private respondent’s petition for prohibition, the Court
of Appeals ratiocinated: jgc:chanro bles. com.ph

"Notwithstanding the protestations of counsel for the respondents, the reassignment

of the petitioner to MIST appears to be indefinite. No period is fixed. No objective or
purpose, from which the temporariness of the assignment may be inferred, is set. In
fact, the recommendation of respondent Secretary Gloria to the President that the
position of superintendent of MIST ‘will best fit his (petitioner’s) qualifications and
experience.’ (Exh.’C-2’) implies that the proposed reassignment will be indefinite." 7
Petitioners theorize that the present petition for prohibition is improper because the
same attacks an act of the President, in violation of the doctrine of presidential
immunity from suit.

Petitioners’ contention is untenable for the simple reason that the petition is directed
against petitioners and not against the President. The questioned acts are those of
petitioners and not of the President. Furthermore, presidential decisions may be
questioned before the courts where there is grave abuse of discretion or that the
President acted without or in excess of jurisdiction. 8

Petitioners’ submission that the petition of private respondent with the Court of
Appeals is improper for failing to show that petitioners constituted themselves into a
"court" conducting a "proceeding" and for failing to show that any of the petitioners
acted beyond their jurisdiction in the exercise of their judicial or ministerial
functions, is barren of merit. Private respondent has clearly averred that the
petitioners acted with grave abuse of discretion amounting to lack of jurisdiction
and/or excess of jurisdiction in reassigning the private respondent in a way that
infringed upon his security of tenure. And petitioners themselves admitted that their
questioned act constituted a ministerial duty, such that they could be subject to
charges of insubordination if they did not comply with the presidential order. What is
more, where an administrative department acts with grave abuse of discretion,
which is equivalent to a capricious and whimsical exercise of judgment, or where the
power is exercised in an arbitrary or despotic manner, there is a justification for the
courts to set aside the administrative determination thus reached. 9

Petitioners contend that the doctrine enunciated in Bentain v. Court of Appeals 10 —

that "a reassignment that is indefinite and results in a reduction in rank, status and
salary, is in effect, a constructive removal from the service" — does not apply in the
present case for the reassignment in question was merely temporary, lasting only
until the appointment of a new Vocational School Superintendent of MIST.

After a careful study, the Court upholds the finding of the respondent court that the
reassignment of petitioner to MIST "appears to be indefinite." The same can be
inferred from the Memorandum 11 of Secretary Gloria for President Fidel V. Ramos
to the effect that the reassignment of private respondent will "best fit his
qualifications and experience" being "an expert in vocational and technical
education." It can thus be gleaned that subject reassignment is more than
temporary as the private respondent has been described as fit for the (reassigned)
job, being an expert in the field. Besides, there is nothing in the said Memorandum
to show that the reassignment of private respondent is temporary or would only last
until a permanent replacement is found as no period is specified or fixed; which fact
evinces an intention on the part of petitioners to reassign private respondent with no
definite period or duration. Such feature of the reassignment in question is definitely
violative of the security of tenure of the private Respondent. As held in Bentain: chanrob1es vi rtua1 1aw 1ib rary

"Security of tenure is a fundamental and constitutionally guaranteed feature of our

civil service. The mantle of its protection extends not only to employees removed
without cause but also to cases of unconsented transfers which are tantamount to
illegal removals (Department of Education, Culture and Sports v. Court of Appeals,
183 SCRA 555; Ibañez v. COMELEC, 19 SCRA 1002; Brillantes v. Guevarra, 27 SCRA
138).

While a temporary transfer or assignment of personnel is permissible even without

the employee’s prior consent, it cannot be done when the transfer is a preliminary
step toward his removal, or is a scheme to lure him away from his permanent
position, or designed to indirectly terminate his service, or force his resignation.
Such a transfer would in effect circumvent the provision which safeguards the tenure
of office of those who are in the Civil Service (Sta. Maria v. Lopez, 31 SCRA 651;
Garcia v. Lejano, 109 Phil. 116)." 12

Having found the reassignment of private respondent to the MIST to be violative of

his security of tenure, the order for his reassignment to the MIST cannot be
countenanced.

WHEREFORE, the petition is hereby DENIED, and the Decision of the Court of
Appeals in CA-G.R. SP No. 35505 AFFIRMED. No pronouncement as to costs. chanrob1es vi rtua1 1aw 1ib rary

SO ORDERED.
Section 7

EN BANC

[G.R. No. 104732. June 22, 1993.]

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A.

JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, Petitioners, v. HON.
FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, Respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio

E. Acierto for petitioners.

DECISION

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the
"Bases Conversion and Development Act of 1992," under which respondent Mayor
Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive
Officer of the Subic Bay Metropolitan Authority (SMBA), is challenged in this original
petition with prayer for prohibition, preliminary injunction and temporary restraining
order "to prevent useless and unnecessary expenditures of public funds by way of
salaries and other operational expenses attached to the office . . . ." 2 Paragraph (d)
reads—

"(d) Chairman/Administrator — The President shall appoint a professional manager

as administrator of the Subic Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget, who shall be the ex officio
chairman of the Board and who shall serve as the chief executive officer of the Subic
Authority: Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority" (Emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at Subic,

Zambales, and officers and members of the Filipino Civilian Employees Association in
U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13
herein-above quoted in italics infringes on the following constitutional and statutory
provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that"
[n]o elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure," 3 because the City Mayor of
Olongapo City is an elective official and the subject posts are public offices; (b) Sec.
16, Art. VII, of the Constitution, which provides that" [t]he President shall . . . .
appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint", 4
since it was Congress through the questioned proviso and not the President who
appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the
Omnibus Election Code, which says: jgc:chanrob les.c om.ph

"Sec. 261. Prohibited Acts. — The following shall be guilty of an election

offense: . . . . (g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. — During the period of forty-five days before
a regular election and thirty days before a special election, (1) any head, official or
appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who
appoints or hires any new employee, whether provisional, temporary or casual, or
creates and fills any new position, except upon prior authority of the Commission.
The Commission shall not grant the authority sought unless it is satisfied that the
position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence
the election. As an exception to the foregoing provisions, a new employee may be
appointed in case of urgent need: Provided, however, That notice of the
appointment shall be given to the Commission within three days from the date of
the appointment. Any appointment or hiring in violation of this provision shall be null
and void. (2) Any government official who promotes, or gives any increase of salary
or remuneration or privilege to any government official or employee, including those
in government-owned or controlled corporations . . . ." cralaw virtua1aw l ibra ry

for the reason that the appointment of respondent Gordon to the subject posts made
by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day
period prior to the 11 May 1992 Elections.

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

In full, Sec. 7 of Art. IX-B of the Constitution provides: jgc:chanrob les.co m.ph

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

"Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." cralaw virt u a1aw libra ry
The section expresses the policy against the concentration of several public positions
in one person, so that a public officer or employee may serve full-time with
dedication and thus be efficient in the delivery of public services. It is an affirmation
that a public office is a full-time job. Hence, a public officer or employee, like the
head of an executive department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip
Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6." . . . should be
allowed to attend to his duties and responsibilities without the distraction of other
governmental duties or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of responsibility, which may
result in haphazardness and inefficiency . . . ."
cralaw vi rtua 1aw lib rary

Particularly as regards the first paragraph of Sec. 7," (t)he basic idea really is to
prevent a situation where a local elective official will work for his appointment in an
executive position in government, and thus neglect his constituents . . . ." 7

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

It is argued that Sec. 94 of the Local Government Code (LGC) permits the
appointment of a local elective official to another post if so allowed by law or by the
primary functions of his office. 8 But, the contention is fallacious. Section 94 of the
LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227,
for no legislative act can prevail over the fundamental law of the land. Moreover,
since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section
sought to be declared unconstitutional, we need not rule on its validity. Neither can
we invoke a practice otherwise unconstitutional as authority for its validity.chanroble svirtuallaw lib rary

In any case, the view that an elective official may be appointed to another post if
allowed by law or by the primary functions of his office, ignores the clear-out
difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the
Constitution. While the second paragraph authorizes holding of multiple offices by an
appointive official when allowed by law or by the primary functions of his position,
the first paragraph appears to be more stringent by not providing any exception to
the rule against appointment or designation of an elective official to other
government posts, except as are particularly recognized in the Constitution itself,
e.g., the President as head of the economic and planning agency; 9 the Vice-
President, who may be appointed Member of the Cabinet; 10 and, a member of
Congress who may be designated ex officio member of the Judicial and Bar Council.
11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not
accidental when drawn, and not without reason. It was purposely sought by the
drafters of the Constitution as shown in their deliberation, thus —

"MR. MONSOD.

In other words, what the Commissioner is saying, Mr. Presiding Officer, is that the
prohibition is more strict with respect to elective officials, because in the case of
appointive officials, there may be a law that will allow them to hold other positions.

"MR. FOZ.

Yes. I suggest we make that difference, because in the case of appointive officials,
there will be certain situations where the law should allow them to hold some other
positions." 12

The distinction being clear, the exemption allowed to appointive officials in the
second paragraph cannot be extended to elective officials who are governed by the
first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of
Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties
Union v. Executive Secretary, 13 where we stated that the prohibition against the
holding of any other office or employment by the President, Vice-President, Members
of the Cabinet, and their deputies or assistants during their tenure, as provided in
Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and
functions required by the primary functions of the officials concerned, who are to
perform them in an ex officio capacity as provided by law, without receiving any
additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not

contemplate making the subject SBMA posts as ex officio or automatically attached
to the Office of the Mayor of Olongapo City without need of appointment. The phrase
"shall be appointed" unquestionably shows the intent to make the SBMA posts
appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it
been the legislative intent to make the subject positions ex officio, Congress would
have, at least, avoided the word "appointed" and, instead, "ex officio" would have
been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso
may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill
and decided to have the controversy resolved by the courts. Indeed, the Senators
would not have been concerned with the effects of Sec. 7, first par., had they
considered the SBMA posts as ex officio. chanroble svirtual lawlib rary: red

Cognizant of the complication that may arise from the way the subject proviso was
stated, Senator Rene Saguisag remarked that "if the Conference Committee just
said ‘the Mayor shall be the Chairman’ then that should foreclose the issue. It is a
legislative choice." 15 The Senator took a view that the constitutional proscription
against appointment of elective officials may have been sidestepped if Congress
attached the SBMA posts to the Mayor of Olongapo City instead of directing the
President to appoint him to the post. Without passing upon this view of Senator
Saguisag, it suffices to state that Congress intended the posts to be appointive, thus
nibbling in the bud the argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by
respondents cannot be applied to uphold the constitutionality of the challenged
proviso since it is not put in issue in the present case. In the same vein, the
argument that if no elective official may be appointed or designated to another post
then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double
compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the
constitutionality of the subject proviso. In any case, the Vice-President for example,
an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII,
may receive the compensation attached to the cabinet position if specifically
authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of

the President. Section 13, par. (d), itself vests in the President the power to appoint
the Chairman of the Board and the Chief Executive Officer of SBMA, although he
really has no choice under the law but to appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is" [t]he designation of a person, by the

person or persons having authority therefor, to discharge the duties of some office
or trust," 17 or" [t]he selection or designation of a person, by the person or persons
having authority therefor, to fill an office or public function and discharge the duties
of the same." 18 In his treatise, Philippine Political Law, 19 Senior Associate Justice
Isagani A. Cruz defines appointment as "the selection, by the authority vested with
the power, of an individual who is to exercise the functions of a given office." cralaw virtua1aw li bra ry

Considering that appointment calls for a selection, the appointing power necessarily
exercises a discretion. According to Woodbury, J., 20 "the choice of a person to fill
an office constitutes the essence of his appointment," 21 and Mr. Justice Malcolm
adds that an" [a]pointment to office is intrinsically an executive act involving the
exercise of discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court 23 we held: chanrob1es vi rtua l 1aw lib ra ry

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 . . . ."
cralaw virtua 1aw lib rary

Indeed, the power of choice is the heart of the power to appoint. Appointment
involves an exercise of discretion of whom to appoint; it is not a ministerial act of
issuing appointment papers to the appointee. In other words, the choice of the
appointee is a fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it
(Congress) cannot at the same time limit the choice of the President to only one
candidate. Once the power of appointment is conferred on the President, such
conferment necessarily carries the discretion of whom to appoint. Even on the
pretext of prescribing the qualifications of the officer, Congress may not abuse such
power as to divest the appointing authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the qualifications prescribed by Congress
can only be met by one individual, such enactment effectively eliminates the
discretion of the appointing power to choose and constitutes an irregular restriction
on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a
presidential appointee for the first year of its operations from the effectivity of R.A.
7227, the proviso nevertheless limits the appointing authority to only one eligible,
i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts
in question, the President is precluded from exercising his discretion to choose
whom to appoint. Such supposed power of appointment, sans the essential element
of choice, is no power at all and goes against the very nature itself of appointment.
lawlibra ry
chanrobles v irt ual

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

Since the ineligibility of an elective official for appointment remains all throughout
his tenure or during his incumbency, he may however resign first from his elective
post to cast off the constitutionally-attached disqualification before he may be
considered fit for appointment. The deliberation in the Constitutional Commission is
enlightening:jgc:chanroble s.com.p h

"MR. DAVIDE.

On Section 4, page 3, line 8, I propose the substitution of the word "term" with
TENURE.

"MR. FOZ.

The effect of the proposed amendment is to make possible for one to resign from his
position.

"MR. DAVIDE.

Yes, we should allow that prerogative.

"MR. FOZ.

Resign from his position to accept an executive position.

"MR. DAVIDE.

Besides, it may turn out in a given case that because of, say, incapacity, he may
leave the service, but if he is prohibited from being appointed within the term for
which he was elected, we may be depriving the government of the needed expertise
of an individual."25 cralaw:red

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

for appointment to another public office. chanrobles law lib rary : re d

Where, as in the case of respondent Gordon, an incumbent elective official was,

notwithstanding his ineligibility, appointed to other government posts, he does not
automatically forfeit his elective office nor remove his ineligibility imposed by the
Constitution. On the contrary, since an incumbent elective official is not eligible to
the appointive position, his appointment or designation thereto cannot be valid in
view of his disqualification or lack of eligibility. This provision should not be confused
with Sec. 13, Art. VI, of the Constitution where" (n)o Senator or Member of the
House of Representatives may hold any other office or employment in the
Government . . . during his term without forfeiting his seat . . . ." The difference
between the two provisions is significant in the sense that incumbent national
legislators lose their elective posts only after they have been appointed to another
government office, while other incumbent elective officials must first resign their
posts before they can be appointed, thus running the risk of losing the elective post
as well as not being appointed to the other post. It is therefore clear that ineligibility
is not directly related with forfeiture of office.." . . . The effect is quite different
where it is expressly provided by law that a person holding one office shall be
ineligible to another. Such a provision is held to incapacitate the incumbent of an
office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan,
283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to
render his election or appointment to the latter office void (State ex rel. Childs v
Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v
State, 107 Okla 272, 232 P 388, 40 ALR 941)." 26 "Where the constitution or
statutes declare that persons holding one office shall be ineligible for election or
appointment to another office, either generally or of a certain kind, the prohibition
has been held to incapacitate the incumbent of the first office to hold the second so
that any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v.
Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the

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

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

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

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

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

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

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

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . .
Provided, however, That for the first year of its operations from the effectivity of this
Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority," is declared unconstitutional; consequently,
the appointment pursuant thereto of the Mayor of Olongapo City, respondent
Richard J. Gordon, is INVALID, hence NULL and VOID.

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

SO ORDERED.

Flores v. Drilon, G.R. No. 104732,

[June 22, 1993]
FACTS: The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as
the “Bases Conversion and Development Act of 1992,” under which respondent
Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief
Executive Officer of the Subic Bay Metropolitan Authority (SMBA), is challenged in
this original petition with prayer for prohibition, preliminary injunction and temporary
restraining order “to prevent useless and unnecessary expenditures of public funds
by way of salaries and other operational expenses attached to the office . . . .”
Paragraph (d) reads—

“(d) Chairman/Administrator — The President shall appoint a professional manager

as administrator of the Subic Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget, who shall be the ex
officio chairman of the Board and who shall serve as the chief executive officer of the
Subic Authority: Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority” (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at Subic,

Zambales, and officers and members of the Filipino Civilian Employees Association
in U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13
herein-above quoted in italics infringes on the following constitutional and statutory
provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that “[n]o
elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure,” because the City Mayor of Olongapo City
is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of
the Constitution, which provides that “[t]he President shall . . . . appoint all other
officers of the Government whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to appoint”, since it was
Congress through the questioned proviso and not the President who appointed the
Mayor to the subject posts; and, (c) Sec. 261, par. (g), of the Omnibus Election
Code, which says:

“Sec. 261. Prohibited Acts. — The following shall be guilty of an election

offense: . . . . (g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. — During the period of forty-five days before a
regular election and thirty days before a special election, (1) any head, official or
appointing officer of a government office, agency or instrumentality, whether national
or local, including government-owned or controlled corporations, who appoints or
hires any new employee, whether provisional, temporary or casual, or creates and
fills any new position, except upon prior authority of the Commission. The
Commission shall not grant the authority sought unless it is satisfied that the position
to be filled is essential to the proper functioning of the office or agency concerned,
and that the position shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed in
case of urgent need: Provided, however, That notice of the appointment shall be
given to the Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void. (2) Any
government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-
owned or controlled corporations . . . .”

for the reason that the appointment of respondent Gordon to the subject posts made
by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day
period prior to the 11 May 1992 Elections.

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

HELD: YES. The view that an elective official may be appointed to another post if
allowed by law or by the primary functions of his office, ignores the clear-out
difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of
the Constitution. While the second paragraph authorizes holding of multiple offices
by an appointive official when allowed by law or by the primary functions of his
position, the first paragraph appears to be more stringent by not providing any
exception to the rule against appointment or designation of an elective official to
other government posts, except as are particularly recognized in
the Constitution itself, e.g., the President as head of the economic and planning
agency; 9 the Vice-President, who may be appointed Member of the Cabinet; and, a
member of Congress who may be designated ex officio member of the Judicial and
Bar Council.

In the case at bar, while Congress willed that the subject posts be filled with a
presidential appointee for the first year of its operations from the effectivity of R.A.
7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e.,
the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in
question, the President is precluded from exercising his discretion to choose whom
to appoint. Such supposed power of appointment, sans the essential element of
choice, is no power at all and goes against the very nature itself of appointment.
cdphil

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

As incumbent elective official, respondent Gordon is ineligible for appointment to the

position of Chairman of the Board and Chief Executive Officer of SBMA; hence, his
appointment thereto pursuant to a legislative act that contravenes
the Constitution cannot be sustained. He however remains Mayor of Olongapo City,
and his acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, “one whose acts, though not those of a lawful officer,
the law, upon principles of policy and justice, will hold valid so far as they involve the
interest of the public and third persons, where the duties of the office were
exercised . . . . under color of a known election or appointment, void because the
officer was not eligible, or because there was a want of power in the electing or
appointing body, or by reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the public . . . . [or] under color
of an election, or appointment, by or pursuant to a public unconstitutional law, before
the same is adjudged to be such.

C. Commission on Elections

Section 1

EN BANC

[G.R. No. 100113. September 3, 1991.]

RENATO L. CAYETANO, Petitioner, v. CHRISTIAN MONSOD, HON. JOVITO R.

SALONGA, COMMISSION ON APPOINTMENTS, and HON. GUILLERMO
CARAGUE in his capacity as Secretary of Budget and
Management, Respondents.
 Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

DECISION

PARAS, J.:

We are faced here with a controversy of far-reaching proportions While ostensibly

only legal issues are involved, the Court’s decision in this case would indubitably
have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1(1), Article IX-C: jgc:chanrobles. com.ph

"There shall be a Commission on Elections composed of a Chairman and six

Commissioners who shall be natural-born citizens of the Philippines and, at the time
of their appointment, at least thirty-five years of age, holders of a college degree,
and must not have been candidates for any elective position in the immediately
preceding elections. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for at
least ten years." (Emphasis supplied)

The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973
Constitution which similarly provides: jgc:chanroble s.com.p h

"There shall be an independent Commission on Elections composed of a Chairman

and eight Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age and holders of a
college degree. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for al
least ten years." (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes

practice of law as a legal qualification to an appointive office. chanrobles vi rtua l lawli bra ry

Black defines "practice of law" as: jgc:chanrob les.com. ph

"The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is not
limited to appearing in court, or advising and assisting in the conduct of litigation,
but embraces the preparation of pleadings, and other papers incident to actions and
special proceedings, conveyancing, the preparation of legal instruments of all kinds,
and the giving of all legal advice to clients. It embraces all advice to clients and all
actions taken for them in matters connected with the law. An attorney engages in
the practice of law by maintaining an office where he is held out to be an attorney,
using a letterhead describing himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel about pending litigation, and fixing and
collecting fees for services rendered by his associate." (Black’s Law Dictionary, 3rd
ed.).
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also
considered to be in the practice of law when he: jgc:chan robles. com.ph

". . . for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body, committee, or commission
constituted by law or authorized to settle controversies and there, in such
representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their rights
under the law, or while so engaged performs any act or acts either in court or
outside of court for that purpose, is engaged in the practice of law." (State ex. rel.
Mckittrick v. C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852).

This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil. 173,
176-177) stated: jgc:chanrob les.co m.ph

"The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In general, all advice to
clients, and all action taken for them in matters connected with the law incorporation
services, assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a creditor’s
claim in bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to constitute
law practice, as do the preparation and drafting of legal instruments, where the work
done involves the determination by the trained legal mind of the legal effect of facts
and conditions." (5 Am. Jr. p. 262, 263). (Emphasis supplied)

"Practice of law under modern conditions consists in no small part of work performed
outside of any court and having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a large variety of subjects, and
the preparation and execution of legal instruments covering an extensive field of
business and trust relations and other affairs. Although these transactions may have
no direct connection with court proceedings, they are always subject to become
involved in litigation. They require in many aspects a high degree of legal skill, a
wide experience with men and affairs, and great capacity for adaptation to difficult
and complex situations. These customary functions of an attorney or counselor at
law bear an intimate relation to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance in court and
that part which involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral
character, and acting at all times under the heavy trust obligations to clients which
rests upon all attorneys." (Moran, Comments on the Rules of Court, Vol. 3 [1953
ed.], p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted
in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139, 144).
(Emphasis ours).
The University of the Philippines Law Center in conducting orientation briefing for
new lawyers (1974-1975) listed the dimensions of the practice of law in even
broader terms as advocacy, counseling and public service.

"One may be a practicing attorney in following any line of employment in the

profession. If what he does exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their profession, and he follows some
one or more lines of employment such as this he is a practicing attorney at law
within the meaning of the statute." (Barr D. Cardell, 155 NW 312).

Practice of law means any activity, in or out of court, which requires the application
of law, legal procedure, knowledge, training and experience. "To engage in the
practice of law is to perform those acts which are characteristics of the profession.
Generally, to practice law is to give notice or render any kind of service, which
device or service requires the use in any degree of legal knowledge or skill." (111
ALR 23).

The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term "practice of law."chanrobles vi rtual lawlib rary

"MR. FOZ. Before we suspend the session, may I make a manifestation which I
forgot to do during our review of the provisions on the Commission on Audit. May I
be allowed to make a very brief statement?

"THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

"MR. FOZ. This has to do with the qualifications of the members of the Commission
on Audit. Among others, the qualifications provided for by Section 1 is that ‘They
must be Members of the Philippine Bar’ — I am quoting from the provision — ‘who
have been engaged in the practice of law for at least ten years.’"

"To avoid any misunderstanding which would result in excluding members of the Bar
who are now employed in the COA or Commission on Audit, we would like to make
the clarification that this provision on qualifications regarding members of the Bar
does not necessarily refer or involve actual practice of law outside the COA. We have
to interpret this to mean that as long as the lawyers who are employed in the COA
are using their legal knowledge or legal talent in their respective work within COA,
then they are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.

"This has been discussed by the Committee on Constitutional Commissions and

Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the qualifications
as regards members of the Philippine Bar engaging in the practice of law for at least
ten years is taken up.

"MR. OPLE. Will Commissioner Foz yield to just one question.

"MR. FOZ. Yes, Mr. Presiding Officer.

"MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent
to the requirement of a law practice that is set forth in the Article on the
Commission on Audit?"

MR. FOZ. We must consider the fact that the work of COA although it is auditing, will
necessarily involve legal work; it will involve legal work. And, therefore, lawyers who
are employed in COA now would have the necessary qualifications in accordance
with the provision on qualifications under our provisions on the Commission on
Audit. And, therefore, the answer is yes.

"MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the
practice of law.

"MR. FOZ. Yes, Mr. Presiding Officer.

"MR. OPLE. Thank you." cralaw vi rtua 1aw lib rary

. . . (Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the
Chairman and two Commissioners of the Commission on Audit (COA) should either
be certified public accountants with not less than ten years of auditing practice, or
members of the Philippine Bar who have been engaged in the practice of law for at
least ten years. (Emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not engage
in private practice, it is still a fact that the majority of lawyers are private
practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons:
Illinois), 1986], p. 15]).

At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of
delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole
practitioners." Groups of lawyers are called "firms." The firm is usually a partnership
and members of the firm are the partners. Some firms may be organized as
professional corporations and the members called shareholders. In either case, the
members of the firm are the experienced attorneys. In most firms, there are
younger or more inexperienced salaried attorneys called "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is
essentially tautologies, unhelpful defining the practice of law as that which lawyers
do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota,
1986], p. 593). The practice of law is defined as "the performance of any acts . . . in
or out of court, commonly understood to be the practice of law. (State Bar Ass’n v.
Connecticut Bank & Trust Co., 145 Conn. 222, 140 A. 2d 863, 870 [1958] [quoting
Grievance Comm. v. Payne, 128 Conn. 325, 22 A. 2d 623, 626 [1941]). Because
lawyers perform almost every function known in the commercial and governmental
realm, such a definition would obviously be too global to be workable. (Wolfram, op.
cit.)

The appearance of a lawyer in litigation in behalf of a client is at once the most

publicly familiar role for lawyers as well as an uncommon role for the average
lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend
their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many
lawyers do continue to litigate and the litigating lawyer’s role colors much of both
the public image and the self-perception of the legal profession. (Ibid.). chanrobles. com:cra law:red

In this regard thus, the dominance of litigation in the public mind reflects history,
not reality. (Ibid.). Why is this so? Recall that the late Alexander Sycip, a corporate
lawyer, once articulated on the importance of a lawyer as a business counselor in
this wise: "Even today, there are still uninformed laymen whose concept of an
attorney is one who principally tries cases before the courts. The members of the
bench and bar and the informed laymen such as businessmen, know that in most
developed societies today, substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do both litigation and non-
litigation work also know that in most cases they find themselves spending more
time doing what [is] loosely describe[d] as business counseling than in trying cases.
The business lawyer has been described as the planner, the diagnostician and the
trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine,
surgery should be avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner will engage in a
number of legal tasks, each involving different legal doctrines, legal skills, legal
processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice will usually perform at least
some legal services outside their specialty. And even within a narrow specialty such
as tax practice, a lawyer will shift from one legal task or role such as advice-giving
to an importantly different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the
relatively rare types — a litigator who specializes in this work to the exclusion of
much else. Instead, the work will require the lawyer to have mastered the full range
of traditional lawyer skills of client counselling, advice-giving, document drafting,
and negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it
some of the salient features of adversarial litigation. Of these special roles, the most
prominent is that of prosecutor. In some lawyers’ work the constraints are imposed
both by the nature of the client and by the way in which the lawyer is organized into
a social unit to perform that work. The most common of these roles are those of
corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are
emerging trends in corporate law practice, a departure from the traditional concept
of practice of law.

We are experiencing today what truly may be called a revolutionary transformation

in corporate law practice. Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional contexts, are finding that
understanding the major emerging trends in corporation law is indispensable to
intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate

understanding of the nature and implications of the corporate law research function
accompanied by an accelerating rate of information accumulation. The recognition of
the need for such improved corporate legal policy formulation, particularly "model-
making" and contingency planning," has impressed upon us the inadequacy of
traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and
weighing of significant conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of action, and the need
for fast decision and response in situations of acute danger have prompted the use
of sophisticated concepts of information flow theory, operational analysis, automatic
data processing, and electronic computing equipment. Understandably, an improved
decisional structure must stress the predictive component of the policy-making
process, wherein a model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects
flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and
projecting the trends of the law, the subject of corporate finance law has received
relatively little organized and formalized attention in the philosophy of advancing
corporate legal education. Nonetheless, a cross-disciplinary approach to legal
research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained

primarily in the law can be improved through an early introduction to multi-variable
decisional contexts and the various approaches for handling such problems.
Lawyers, particularly with either a master’s or doctorate degree in business
administration or management, functioning at the legal policy level of decision-
making now have some appreciation for the concepts and analytical techniques of
other professions which are currently engaged in similar types of complex decision-
making.

Truth to tell, many situations involving corporate finance problems would require the
services of an astute attorney because of the complex legal implications that arise
from each and every necessary step in securing and maintaining the business issue
raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the

"abogado de campanilla." He is the "big-time" lawyer, earning big money and with a
clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain
what it is that a corporate lawyer does. For one, the number of attorneys employed
by a single corporation will vary with the size and type of the corporation. Many
smaller and some large corporations farm out all their legal problems to private law
firms. Many others have in-house counsel only for certain matters. Other corporation
have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal
affairs of a corporation. His areas of concern or jurisdiction may include, inter alia:
corporate legal research, tax laws research, acting out as corporate secretary (in
board meetings), appearances in both courts and other adjudicatory agencies
(including the Securities and Exchange Commission), and in other capacities which
require an ability to deal with the law.
chanroble s virtualawl ibra ry cha nrob les.co m:chan roble s.com.p h

At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. (Emphasis
supplied.)

In a big company, for example, one may have a feeling of being isolated from the
action, or not understanding how one’s work actually fits into the work of the
organization. This can be frustrating to someone who needs to see the results of his
work first hand. In short, a corporate lawyer is sometimes offered this fortune to be
more closely involved in the running of the business.

Moreover, a corporate lawyer’s services may sometimes be engaged by a

multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field. After
all, international law is practiced in a relatively small number of companies and law
firms. Because working in a foreign country is perceived by many as glamorous, this
is an area coveted by corporate lawyers. In most cases, however, the overseas jobs
go to experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May 25, 1990, p.
4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance.
To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad
lawyer is one who fails to spot problems, a good lawyer is one who perceives the
difficulties, and the excellent lawyer is one who surmounts them." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to
speak. No longer are we talking of the traditional law teaching method of confining
the subject study to the Corporation Code and the Securities Code but an incursion
as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary skills
applicable to a corporate counsel’s management responsibilities; and (3) a devotion
to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as "intersecting managerial jurisprudence," it
forms a unifying theme for the corporate counsel’s total learning.

Some current advances in behavior and policy sciences affect the counsel’s role. For
that matter, the corporate lawyer reviews the globalization process, including the
resulting strategic repositioning that the firms he provides counsel for are required
to make, and the need to think about a corporation’s strategy at multiple levels. The
salience of the nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national governmental units.
Firms increasingly collaborate not only with public entities but with each other —
often with those who are competitors in other arenas.

Also, the nature of the lawyer’s participation in decision-making within the

corporation is rapidly changing. The modern corporate lawyer has gained a new role
as a stockholder — in some cases participating in the organization and operations of
governance through participation on boards and other decision-making roles. Often
these new patterns develop alongside existing legal institutions and laws are
perceived as barriers. These trends are complicated as corporations organize for
global operations. (Emphasis supplied).

The practising lawyer of today is familiar as well with governmental policies toward
the promotion and management of technology. New collaborative arrangements for
promoting specific technologies or competitiveness more generally require
approaches from industry that differ from older, more adversarial relationships and
traditional forms of seeking to influence governmental policies. And there are
lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business Japan’s MITI
is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of all kinds of
organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment, coordinating work with outsiders, promoting team achievements within
the organization. In general, such external activities are better predictors of team
performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-
vis the managerial mettle of corporations are challenged. Current research is
seeking ways both to anticipate effective managerial procedures and to understand
relationships of financial liability and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos: chanrob1e s virtual 1aw l ibra ry

First System Dynamics. The field of systems dynamics has been found an effective
tool for new managerial thinking regarding both planning and pressing immediate
problems. An understanding of the role of feedback loops, inventory levels, and
rates of flow, enable users to simulate all sorts of systematic problems — physical,
economic, managerial, social, and psychological. New programming techniques now
make the systems dynamics principles more accessible to managers — including
corporate counsels. (Emphasis supplied).

Second Decision Analysis. This enables users to make better decisions involving
complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and
minimize the cost and risk involved in managing a portfolio of cases. (Emphasis
supplied)

Third Modeling for Negotiation Management. Computer-based models can be used

directly by parties and mediators in all kinds of negotiations. All integrated set of
such tools provide coherent and effective negotiation support, including hands-on on
instruction in these techniques. A simulation case of an international joint venture
may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern
three pointed areas of consideration, thus: chanrob1e s virtual 1aw l ib rary

Preventive Lawyering. Planning by lawyers requires special skills that comprise a

major part of the general counsel’s responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of legal
trouble and maximizing legal rights for such legal entities at that time when
transactional or similar facts are being considered and made. chanroble s lawlib rary : rednad

Managerial Jurisprudence. This is the framework within which are undertaken those
activities of the firm to which legal consequences attach. It needs to be directly
supportive of this nation’s evolving economic and organizational fabric as firms
change to stay competitive in a global, interdependent environment. The practice
and theory of "law" is not adequate today to facilitate the relationships needed in
trying to make a global economy work.

Organization and Functioning of the Corporate Counsel’s Office. The general counsel
has emerged in the last decade as one of the most vibrant subsets of the legal
profession. The corporate counsel hear responsibility for key aspects of the firm’s
strategic issues, including structuring its global operations, managing improved
relationships with an increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough
to make one a good general corporate counsel nor to give him a full sense of how
the legal system shapes corporate activities. And even if the corporate lawyer’s aim
is not the understand all of the law’s effects on corporate activities, he must, at the
very least, also gain a working knowledge of the management issues if only to be
able to grasp not only the basic legal "constitution" or make-up of the modern
corporation. "Business Star, The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a
passing knowledge of financial law affecting each aspect of their work. Yet, many
would admit to ignorance of vast tracts of the financial law territory. What transpires
next is a dilemma of professional security: Will the lawyer admit ignorance and risk
opprobrium?; or will he feign understanding and risk exposure? (Business Star,
"Corporate Finance law," Jar. 11, 1989, p. 4).chanrobles law li bra ry : red

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the

position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner opposed the nomination
because allegedly Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of

Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office.
On the same day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of

Monsod’s nomination, petitioner as a citizen and taxpayer, filed the instant petition
for Certiorari and Prohibition praying that said confirmation and the consequent
appointment of Monsod as Chairman of the Commission on Elections be declared null
and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86.55%. He has been a dues paying member
of the Integrated Bar of the Philippines since its inception in 1972-73. He has also
been paying his professional license fees as lawyer for more than ten years. (p. 124,
Rollo).

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty.
Monsod worked in the law office of his father. During his stint in the World Bank
Group (1963-1970), Monsod worked as an operations officer for about two years in
Costa Rica and Panama, which involved getting acquainted with the laws of
member-countries, negotiating loans and coordinating legal, economic, and project
work of the Bank. Upon returning to the Philippines in 1970, he worked with the
Meralco Group, served as chief executive officer of an investment bank and
subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As
former Secretary-General (1986) and National Chairman (1987) of NAMFREL.
Monsod’s work involved being knowledgeable in election law. He appeared for
NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the Bishops
Businessmen’s Conference for Human Development, has worked with the under
privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying
for and engaging in affirmative action for the agrarian reform law and lately the
urban land reform bill. Monsod also made use of his legal knowledge as a member of
the Davide Commission, a quasi-judicial body, which conducted numerous hearings
(1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was
cited by the President of the Commission, Justice Cecilia Muñoz-Palma for
"innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of
Representative." (pp. 128-129 Rollo) (Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be
a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is
adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations officer
(such as an official involved in negotiating the contracts) who comprise the members
of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing
Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila,
1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country’s Constitution; it lays down the
law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1) business
terms; (2) borrower’s representation; (3) conditions of closing; (4) covenants; and
(5) events of default. (Ibid., p. 13)

In the same vein, lawyers play an important role in any debt restructuring program.
For aside from performing the tasks of legislative drafting and legal advising, they
score national development policies as key factors in maintaining their countries’
sovereignty. (Condensed from the work paper, entitled "Wanted: Development
Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International Development, during the
Session on Law for the Development of Nations at the Abidjan World Conference in
Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31,
1973). (Emphasis supplied).
Loan concessions and compromises, perhaps even more so than purely re
negotiation policies, demand expertise in the law of contracts, in legislation and
agreement drafting and in re negotiation. Necessarily, a sovereign lawyer may work
with an international business specialist or an economist in the formulation of a
model loan agreement. Debt restructuring contract agreements contain such a
mixture of technical language that they should be carefully drafted and signed only
with the advise of competent counsel in conjunction with the guidance of adequate
technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987,
p. 321). (Emphasis supplied).

A critical aspect of sovereign debt restructuring/contract construction is the set of

terms and conditions which determines the contractual remedies for a failure to
perform one or more elements of the contract. A good agreement must not only
define the responsibilities of both parties, but must also state the recourse open to
either party when the other fails to discharge an obligation. For a complete debt
restructuring represents a devotion to that principle which in the ultimate analysis is
sine qua non for foreign loan agreements — an adherence to the rule of law in
domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver
Wendell Holmes, Jr. once said: ‘They carry no banners, they beat no drums; but
where they are, men learn that bustle and bush are not the equal of quiet genius
and serene mastery.’ (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third
and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term "practice of law",
particularly the modern concept of law practice, and taking into consideration the
liberal construction intended by the framers of the Constitution, Atty. Monsod s past
work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur
of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich
and the poor — verily more than satisfy the constitutional requirement — that he
has been engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the
Court said:chanrobles.com : vi rtua l law lib ra ry

"Appointment is an essentially discretionary power and must be performed by the

officer in which it is vested according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified
who should have been preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide." (Emphasis supplied).

No less emphatic was the Court in the case of Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated: jgc:chanro bles. com.ph

"It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The Commission
has no authority to revoke an appointment on the ground that another person is
more qualified for a particular position. It also has no authority to direct the
appointment of a substitute of its choice. To do so would be an encroachment on the
discretion vested upon the appointing authority. An appointment is essentially within
the discretionary power of whomsoever it is vested, subject to the only condition
that the appointee should possess the qualifications required by law." (Emphasis
supplied).

The appointing process in a regular appointment as in the case at bar, consists of

four (4) stages: (1) nomination; (2) confirmation by the Commission on
Appointments; (3) issuance of a commission (in the Philippines, upon submission by
the Commission on Appointments of its certificate of confirmation, the President
issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of
bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination
of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2)
Sub-Article C, Article IX of the Constitution which provides:
jgc:chanrobles. com.ph

"The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without re
appointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last Members for three years, without re
appointment. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity." cralaw virtua 1aw lib rary

Anent Justice Teodoro Padilla’s separate opinion, suffice it to say that his definition
of the practice of law is the traditional or stereotyped notion of law practice, as
distinguished from the modern concept of the practice of law, which modern
connotation is exactly what was intended by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla’s definition would require generally a habitual
law practice, perhaps practiced two or three times a week and would outlaw say, law
practice once or twice a year for ten consecutive years. Clearly, this is far from the
constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my
written opinion, I made use of a definition of law practice which really means
nothing because the definition says that law practice." . . is what people ordinarily
mean by the practice of law." True I cited the definition but only by way of sarcasm
as evident from my statement that the definition of law practice by "traditional areas
of law practice is essentially tautologous" or defining a phrase by means of the
phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others on what
the law means, are actually practicing law. In that sense, perhaps, but we should
not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine
Bar, who has been practicing law for over ten years. This is different from the acts of
persons practicing law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent President?
We now proceed: chanrob1e s virtual 1aw l ib rary

The Commission on the basis of evidence submitted during the public hearings on
Monsod’s confirmation, implicitly determined that he possessed the necessary
qualifications as required by law. The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission’s judgment.
In the instant case, there is no occasion for the exercise of the Court’s corrective
power, since no abuse, much less a grave abuse of discretion, that would amount to
lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for
has been clearly shown. chanroble s lawlib rary : rednad

Additionally, consider the following: chanrob1es vi rtual 1aw lib rary

(1) If the Commission on Appointments rejects a nominee by the President, may the
Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has
confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress)
decides to confirm a Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is: jgc:chanrobles. com.ph

"We must interpret not by the letter that killeth, but by the spirit that giveth life." cralaw virtua1aw l ibra ry

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea
asked Delilah (who was Samson’s beloved) for help in capturing Samson. Delilah
agreed on condition that —

"No blade shall touch his skin;

No blood shall flow from his veins." cralaw virtua1aw li bra ry

When Samson (his long hair cut by Delilah) was captured, the procurator placed an
iron rod burning white-hot two or three inches away from in front of Samson’s eyes.
This blinded the man. Upon hearing of what had happened to her beloved, Delilah
was beside herself with anger, and fuming with righteous fury, Accused the
procurator of reneging on his word. The procurator calmly replied: "Did any blade
touch his skin? Did any blood flow from his veins?" The procurator was clearly
relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.

Cayetano v. Monsod
G.R. No. 100113 | September 3, 1991

FACTS:
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the
position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner Renato Cayetano opposed
the nomination because allegedly Monsod does not possess the required qualification of
having been engaged in the practice of law for at least ten years. Atty. Monsod has
worked as a lawyer in the law office of his father (1960-1963); an operations officer with
the World Bank Group (1963-1970); Chief Executive Officer of an investment bank (1970-
1986); legal or economic consultant on various companies (1986); Secretary General of
NAMFREL (1986); member of Constitutional Commission (1986-1987); National Chairman
of NAMFREL (1987); and member of the quasi-judicial Davide Commission (1990).

On June 5, 1991, the Commission on Appointments confirmed the nomination of

Monsod as Chairman of the COMELEC.On June 18, 1991, he took his oath of office. On
the same day, he assumed office as Chairman of the COMELEC.Challenging the validity
of the confirmation by the Commission on Appointments of Monsod’s nomination,
petitioner as a citizen and taxpayer, filed the instant petition for certiorari and
prohibition praying that said confirmation and the consequent appointment of Monsod
as Chairman of the Commission on Elections be declared null and void.

ISSUE:
Whether or not the respondent posseses the required qualification of having engaged in
the practice of law for at least ten years.

HELD:
The Supreme Court ruled that Atty. Monsod possessed the required qualification. In the
case of Philippine Lawyers Association vs. Agrava: The practice of law is not limited to the
conduct of cases or litigation in court. In general, all advice to clients, and all action taken
for them in matters connected with the law incorporation services, assessment and
condemnation services, contemplating an appearance before judicial body, the
foreclosure of mortgage, enforcement of a creditor’s claim in bankruptcy and insolvency
proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice.

Practice of law means any activity, in or out court, which requires the application of law,
legal procedure, knowledge, training and experience. “To engage in the practice of law is
to perform those acts which are characteristics of the profession. In general, a practice of
law requires a lawyer and client relationship, it is whether in or out of court. As such, the
petition is dismissed.
 Section 2

G.R. No. 188920 February 16, 2010

JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR, JR., RODOLFO G. VALENCIA, DANILO E.

SUAREZ, SOLOMON R. CHUNGALAO, SALVACION ZALDIVAR-PEREZ, HARLIN CAST-
ABAYON, MELVIN G. MACUSI and ELEAZAR P. QUINTO, Petitioners,
vs.
COMMISSION ON ELECTIONS, MANUEL A. ROXAS II, FRANKLIN M. DRILON and J.R.
NEREUS O. ACOSTA, Respondents.

DECISION

ABAD, J.:

This petition is an offshoot of two earlier cases already resolved by the Court involving a
leadership dispute within a political party. In this case, the petitioners question their expulsion
from that party and assail the validity of the election of new party leaders conducted by the
respondents.

Statement of the Facts and the Case

For a better understanding of the controversy, a brief recall of the preceding events is in order.

On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the Liberal Party
(LP), announced his party’s withdrawal of support for the administration of President Gloria
Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr. (Atienza), LP Chairman, and a number of
party members denounced Drilon’s move, claiming that he made the announcement without
consulting his party.

On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local
autonomy and party matters but, when convened, the assembly proceeded to declare all
positions in the LP’s ruling body vacant and elected new officers, with Atienza as LP president.
Respondent Drilon immediately filed a petition1 with the Commission on Elections (COMELEC) to
nullify the elections. He claimed that it was illegal considering that the party’s electing bodies, the
National Executive Council (NECO) and the National Political Council (NAPOLCO), were not
properly convened. Drilon also claimed that under the amended LP Constitution,2 party officers
were elected to a fixed three-year term that was yet to end on November 30, 2007.

On the other hand, petitioner Atienza claimed that the majority of the LP’s NECO and NAPOLCO
attended the March 2, 2006 assembly. The election of new officers on that occasion could be
likened to "people power," wherein the LP majority removed respondent Drilon as president by
direct action. Atienza also said that the amendments3 to the original LP Constitution, or the
Salonga Constitution, giving LP officers a fixed three-year term, had not been properly ratified.
Consequently, the term of Drilon and the other officers already ended on July 24, 2006.

On October 13, 2006, the COMELEC issued a resolution,4 partially granting respondent Drilon’s
petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under
COMELEC supervision. It held that the election of petitioner Atienza and the others with him was
invalid since the electing assembly did not convene in accordance with the Salonga Constitution.
But, since the amendments to the Salonga Constitution had not been properly ratified, Drilon’s
term may be deemed to have ended. Thus, he held the position of LP president in a holdover
capacity until new officers were elected.
Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April 17,
2007 a divided Court issued a resolution,5 granting respondent Drilon’s petition and denying that
of petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction
over the intra-party leadership dispute; that the Salonga Constitution had been validly amended;
and that, as a consequence, respondent Drilon’s term as LP president was to end only on
November 30, 2007.

Subsequently, the LP held a NECO meeting to elect new party leaders before respondent
Drilon’s term expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to
vote attended. Before the election, however, several persons associated with petitioner Atienza
sought to clarify their membership status and raised issues regarding the composition of the
NECO. Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as the new LP
president.

On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E.
Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G.
Macusi, and Eleazar P. Quinto, filed a petition for mandatory and prohibitory injunction6 before
the COMELEC against respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party
secretary general. Atienza, et al. sought to enjoin Roxas from assuming the presidency of the LP,
claiming that the NECO assembly which elected him was invalidly convened. They questioned
the existence of a quorum and claimed that the NECO composition ought to have been based on
a list appearing in the party’s 60th Anniversary Souvenir Program. Both Atienza and Drilon
adopted that list as common exhibit in the earlier cases and it showed that the NECO had 103
members.

Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not
invited to the NECO meeting and that some members, like petitioner Defensor, were given the
status of "guests" during the meeting. Atienza’s allies allegedly raised these issues but
respondent Drilon arbitrarily thumbed them down and "railroaded" the proceedings. He
suspended the meeting and moved it to another room, where Roxas was elected without notice
to Atienza’s allies.

On the other hand, respondents Roxas, et al. claimed that Roxas’ election as LP president
faithfully complied with the provisions of the amended LP Constitution. The party’s 60th
Anniversary Souvenir Program could not be used for determining the NECO members because
supervening events changed the body’s number and composition. Some NECO members had
died, voluntarily resigned, or had gone on leave after accepting positions in the government.
Others had lost their re-election bid or did not run in the May 2007 elections, making them
ineligible to serve as NECO members. LP members who got elected to public office also became
part of the NECO. Certain persons of national stature also became NECO members upon
respondent Drilon’s nomination, a privilege granted the LP president under the amended LP
Constitution. In other words, the NECO membership was not fixed or static; it changed due to
supervening circumstances.

Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-
Perez, and Cast-Abayon resigned for holding the illegal election of LP officers on March 2, 2006.
This was pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified.
Meanwhile, certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited
their party membership when they ran under other political parties during the May 2007 elections.
They were dropped from the roster of LP members.

On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et
al.’s petition. It noted that the May 2007 elections necessarily changed the composition of the
NECO since the amended LP Constitution explicitly made incumbent senators, members of the
House of Representatives, governors and mayors members of that body. That some lost or won
these positions in the May 2007 elections affected the NECO membership. Petitioners failed to
prove that the NECO which elected Roxas as LP president was not properly convened.

As for the validity of petitioners Atienza, et al.’s expulsion as LP members, the COMELEC
observed that this was a membership issue that related to disciplinary action within the political
party. The COMELEC treated it as an internal party matter that was beyond its jurisdiction to
resolve.

Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al.
filed this petition for certiorari under Rule 65.

The Issues Presented

Respondents Roxas, et al. raise the following threshold issues:

1. Whether or not the LP, which was not impleaded in the case, is an indispensable
party; and

2. Whether or not petitioners Atienza, et al., as ousted LP members, have the requisite
legal standing to question Roxas’ election.

Petitioners Atienza, et al., on the other hand, raise the following issues:

3. Whether or not the COMELEC gravely abused its discretion when it upheld the NECO
membership that elected respondent Roxas as LP president;

4. Whether or not the COMELEC gravely abused its discretion when it resolved the issue
concerning the validity of the NECO meeting without first resolving the issue concerning
the expulsion of Atienza, et al. from the party; and

5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.’s

constitutional right to due process by the latter’s expulsion from the party.

The Court’s Ruling

One. Respondents Roxas, et al. assert that the Court should dismiss the petition for failure of
petitioners Atienza, et al. to implead the LP as an indispensable party. Roxas, et al. point out
that, since the petition seeks the issuance of a writ of mandatory injunction against the NECO,
the controversy could not be adjudicated with finality without making the LP a party to the case.7

But petitioners Atienza, et al.’s causes of action in this case consist in respondents Roxas, et
al.’s disenfranchisement of Atienza, et al. from the election of party leaders and in the illegal
election of Roxas as party president. Atienza, et al. were supposedly excluded from the elections
by a series of "despotic acts" of Roxas, et al., who controlled the proceedings. Among these acts
are Atienza, et al.’s expulsion from the party, their exclusion from the NECO, and respondent
Drilon’s "railroading" of election proceedings. Atienza, et al. attributed all these illegal and
prejudicial acts to Roxas, et al.

Since no wrong had been imputed to the LP nor had some affirmative relief been sought from it,
the LP is not an indispensable party. Petitioners Atienza, et al.’s prayer for the undoing of
respondents Roxas, et al.’s acts and the reconvening of the NECO are directed against Roxas,
et al.

Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no legal standing
to question the election of Roxas as LP president because they are no longer LP members,
having been validly expelled from the party or having joined other political parties.8 As non-
members, they have no stake in the outcome of the action.

But, as the Court held in David v. Macapagal-Arroyo,9 legal standing in suits is governed by the
"real parties-in-interest" rule under Section 2, Rule 3 of the Rules of Court. This states that "every
action must be prosecuted or defended in the name of the real party-in-interest." And "real party-
in-interest" is one who stands to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit. In other words, the plaintiff’s standing is based on his own right to
the relief sought. In raising petitioners Atienza, et al.’s lack of standing as a threshold issue,
respondents Roxas, et al. would have the Court hypothetically assume the truth of the allegations
in the petition.

Here, it is precisely petitioners Atienza, et al.’s allegations that respondents Roxas, et al.
deprived them of their rights as LP members by summarily excluding them from the LP roster
and not allowing them to take part in the election of its officers and that not all who sat in the
NECO were in the correct list of NECO members. If Atienza, et al.’s allegations were correct,
they would have been irregularly expelled from the party and the election of officers, void.
Further, they would be entitled to recognition as members of good standing and to the holding of
a new election of officers using the correct list of NECO members. To this extent, therefore,
Atienza, et al. who want to take part in another election would stand to be benefited or prejudiced
by the Court’s decision in this case. Consequently, they have legal standing to pursue this
petition.

Three. In assailing respondent Roxas’ election as LP president, petitioners Atienza, et al. claim
that the NECO members allowed to take part in that election should have been limited to those in
the list of NECO members appearing in the party’s 60th Anniversary Souvenir Program. Atienza,
et al. allege that respondent Drilon, as holdover LP president, adopted that list in the earlier
cases before the COMELEC and it should thus bind respondents Roxas, et al. The Court’s
decision in the earlier cases, said Atienza, et al., anointed that list for the next party election.
Thus, Roxas, et al. in effect defied the Court’s ruling when they removed Atienza as party
chairman and changed the NECO’s composition.10

But the list of NECO members appearing in the party’s 60th Anniversary Souvenir Program was
drawn before the May 2007 elections. After the 2007 elections, changes in the NECO
membership had to be redrawn to comply with what the amended LP Constitution required.
Respondent Drilon adopted the souvenir program as common exhibit in the earlier cases only to
prove that the NECO, which supposedly elected Atienza as new LP president on March 2, 2006,
had been improperly convened. It cannot be regarded as an immutable list, given the nature and
character of the NECO membership.

Nothing in the Court’s resolution in the earlier cases implies that the NECO membership should
be pegged to the party’s 60th Anniversary Souvenir Program. There would have been no basis
for such a position. The amended LP Constitution did not intend the NECO membership to be
permanent. Its Section 2711 provides that the NECO shall include all incumbent senators,
members of the House of Representatives, governors, and mayors who were LP members in
good standing for at least six months. It follows from this that with the national and local elections
taking place in May 2007, the number and composition of the NECO would have to yield to
changes brought about by the elections.

Former NECO members who lost the offices that entitled them to membership had to be
dropped. Newly elected ones who gained the privilege because of their offices had to come in.
Furthermore, former NECO members who passed away, resigned from the party, or went on
leave could not be expected to remain part of the NECO that convened and held elections on
November 26, 2007. In addition, Section 27 of the amended LP Constitution expressly authorized
the party president to nominate "persons of national stature" to the NECO. Thus, petitioners
Atienza, et al. cannot validly object to the admission of 12 NECO members nominated by
respondent Drilon when he was LP president. Even if this move could be regarded as
respondents Roxas, et al.’s way of ensuring their election as party officers, there was certainly
nothing irregular about the act under the amended LP Constitution.

The NECO was validly convened in accordance with the amended LP Constitution. Respondents
Roxas, et al. explained in details how they arrived at the NECO composition for the purpose of
electing the party leaders.12 The explanation is logical and consistent with party rules.
Consequently, the COMELEC did not gravely abuse its discretion when it upheld the composition
of the NECO that elected Roxas as LP president.

Petitioner Atienza claims that the Court’s resolution in the earlier cases recognized his right as
party chairman with a term, like respondent Drilon, that would last up to November 30, 2007 and
that, therefore, his ouster from that position violated the Court’s resolution. But the Court’s
resolution in the earlier cases did not preclude the party from disciplining Atienza under Sections
2913 and 4614 of the amended LP Constitution. The party could very well remove him or any
officer for cause as it saw fit.

Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its jurisdiction
when it ruled on the composition of the NECO but refused to delve into the legality of their
expulsion from the party. The two issues, they said, weigh heavily on the leadership controversy
involved in the case. The previous rulings of the Court, they claim, categorically upheld the
jurisdiction of the COMELEC over intra-party leadership disputes.15

But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of the
expulsion of petitioners Atienza, et al. from the party, but the legitimacy of the NECO assembly
that elected respondent Roxas as LP president. Given the COMELEC’s finding as upheld by this
Court that the membership of the NECO in question complied with the LP Constitution, the
resolution of the issue of whether or not the party validly expelled petitioners cannot affect the
election of officers that the NECO held.1avvphi 1

While petitioners Atienza, et al. claim that the majority of LP members belong to their faction,
they did not specify who these members were and how their numbers could possibly affect the
composition of the NECO and the outcome of its election of party leaders. Atienza, et al. has not
bothered to assail the individual qualifications of the NECO members who voted for Roxas. Nor
did Atienza, et al. present proof that the NECO had no quorum when it then assembled. In other
words, the claims of Atienza, et al. were totally unsupported by evidence.

Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the party impacts
on the party leadership issue or on the election of respondent Roxas as president so that it was
indispensable for the COMELEC to adjudicate such claim. Under the circumstances, the validity
or invalidity of Atienza, et al.’s expulsion was purely a membership issue that had to be settled
within the party. It is an internal party matter over which the COMELEC has no jurisdiction.

What is more, some of petitioner Atienza’s allies raised objections before the NECO assembly
regarding the status of members from their faction. Still, the NECO proceeded with the election,
implying that its membership, whose composition has been upheld, voted out those objections.

The COMELEC’s jurisdiction over intra-party disputes is limited. It does not have blanket
authority to resolve any and all controversies involving political parties. Political parties are
generally free to conduct their activities without interference from the state. The COMELEC may
intervene in disputes internal to a party only when necessary to the discharge of its constitutional
functions.

The COMELEC’s jurisdiction over intra-party leadership disputes has already been settled by the
Court. The Court ruled in Kalaw v. Commission on Elections16 that the COMELEC’s powers and
functions under Section 2, Article IX-C of the Constitution, "include the ascertainment of the
identity of the political party and its legitimate officers responsible for its acts." The Court also
declared in another case17 that the COMELEC’s power to register political parties necessarily
involved the determination of the persons who must act on its behalf. Thus, the COMELEC may
resolve an intra-party leadership dispute, in a proper case brought before it, as an incident of its
power to register political parties.

The validity of respondent Roxas’ election as LP president is a leadership issue that the
COMELEC had to settle. Under the amended LP Constitution, the LP president is the issuing
authority for certificates of nomination of party candidates for all national elective positions. It is
also the LP president who can authorize other LP officers to issue certificates of nomination for
candidates to local elective posts.18 In simple terms, it is the LP president who certifies the official
standard bearer of the party.

The law also grants a registered political party certain rights and privileges that will redound to
the benefit of its official candidates. It imposes, too, legal obligations upon registered political
parties that have to be carried out through their leaders. The resolution of the leadership issue is
thus particularly significant in ensuring the peaceful and orderly conduct of the elections.19

Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of
party membership or discipline; it involves a violation of their constitutionally-protected right to
due process of law. They claim that the NAPOLCO and the NECO should have first summoned
them to a hearing before summarily expelling them from the party. According to Atienza, et al.,
proceedings on party discipline are the equivalent of administrative proceedings20 and are,
therefore, covered by the due process requirements laid down in Ang Tibay v. Court of Industrial
Relations.21

But the requirements of administrative due process do not apply to the internal affairs of political
parties. The due process standards set in Ang Tibay cover only administrative bodies created by
the state and through which certain governmental acts or functions are performed. An
administrative agency or instrumentality "contemplates an authority to which the state delegates
governmental power for the performance of a state function."22 The constitutional limitations that
generally apply to the exercise of the state’s powers thus, apply too, to administrative bodies.

The constitutional limitations on the exercise of the state’s powers are found in Article III of the
Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life,
property, or liberty without due process under Section 1 is generally a limitation on the state’s
powers in relation to the rights of its citizens. The right to due process is meant to protect
ordinary citizens against arbitrary government action, but not from acts committed by private
individuals or entities. In the latter case, the specific statutes that provide reliefs from such private
acts apply. The right to due process guards against unwarranted encroachment by the state into
the fundamental rights of its citizens and cannot be invoked in private controversies involving
private parties.23

Although political parties play an important role in our democratic set-up as an intermediary
between the state and its citizens, it is still a private organization, not a state instrument. The
discipline of members by a political party does not involve the right to life, liberty or property
within the meaning of the due process clause. An individual has no vested right, as against the
state, to be accepted or to prevent his removal by a political party. The only rights, if any, that
party members may have, in relation to other party members, correspond to those that may have
been freely agreed upon among themselves through their charter, which is a contract among the
party members. Members whose rights under their charter may have been violated have
recourse to courts of law for the enforcement of those rights, but not as a due process issue
against the government or any of its agencies.

But even when recourse to courts of law may be made, courts will ordinarily not interfere in
membership and disciplinary matters within a political party. A political party is free to conduct its
internal affairs, pursuant to its constitutionally-protected right to free association. In Sinaca v.
Mula,24 the Court said that judicial restraint in internal party matters serves the public interest by
allowing the political processes to operate without undue interference. It is also consistent with
the state policy of allowing a free and open party system to evolve, according to the free choice
of the people.25

To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas’ election
as LP president but refused to rule on the validity of Atienza, et al.’s expulsion from the party.
While the question of party leadership has implications on the COMELEC’s performance of its
functions under Section 2, Article IX-C of the Constitution, the same cannot be said of the issue
pertaining to Atienza, et al.’s expulsion from the LP. Such expulsion is for the moment an issue of
party membership and discipline, in which the COMELEC cannot intervene, given the limited
scope of its power over political parties.

WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the
Commission on Elections dated June 18, 2009 in COMELEC Case SPP 08-001.

SO ORDERED.

Atienza v COMELEC

G.R. No. 188920. February 16, 2010

Facts:
Drilon, the former president of the Liberal Party (LP) announced that his party
withdrew support for the administration of former Pres. Gloria Macapagal- Arroyo.
However, Atienza, LPChairman, alleged that Drilon made the announcement without
consulting first the party.
Atienza hosted a party conference which resulted to the election of new
officers, with Atienza as LP president. Drilon immediately filed a petition with the
COMELEC to nullify the said election claiming that it was illegal considering that the
party’s electing bodies, NECO and NAPOLCO, were not properly convened.
Moreover, Drilon claimed that under the LP Constitution, there is a three-year term.
Meaning, his term has not yet ended.
However, Atienza contested that the election of new officers could be likened
to people power removing Drilon as president by direct action. Also, Atienza alleged
that the amendment to the LP Constitution providing the three-term had not been
properly ratified. The COMELEC held that the election of Atienza and others was
invalid since the electing assembly did not convene in accordance with the LP
Constitution.
The COMELEC ruled that since the said Constitution was not ratified, Drilon
was only sitting in a hold-overcapacity since his term has been ended already.
Subsequently, the LP held a NECO meeting to elect new party leaders before
respondent Drilon’s term expired which resulted to the election of Roxas as the new
LP president. Atienza et al. sought to enjoin Roxas from assuming the presidency of
the LP questioning the validity of the quorum. The COMELEC issued resolution
denying petitioners Atienza et al’s petition.
As for the validity of petitioners Atienza, et al’s expulsion as LP members, the
COMELEC observed that this was a membership issue that related to disciplinary
action within the political party. The COMELEC treated it as an internal party matter
that was beyond its jurisdiction to resolve.

Issue:
WoN the COMELEC has jurisdiction over intra-party dispute.

Held:
The COMELEC’s jurisdiction over intra-party disputes is limited. It does not
have blanket authority to resolve any and all controversies involving political parties.
Political parties are generally free to conduct their activities without
interference from the state. The COMELEC may intervene in disputes internal to a
party only when necessary to the discharge of its constitutional functions. The Court
ruled in Kalaw v. Commission on Elections that the COMELEC’s powers and
functions under Section 2, Article IX-C of the Constitution, “include the ascertainment
of the identity of the political party and its legitimate officers responsible for its
acts.” Moreover, the COMELEC’s power to register political parties necessarily
involved the determination of the persons who must act on its behalf. Thus, the
COMELEC may resolve an intra-party leadership dispute, in a proper case brought
before it, as an incident of its power to register political parties.
The COMELEC did not err when it upheld Roxas’s election but refused to
rule on the validity of Atienza’s expulsion.

G.R. No. 199082 September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner,

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her
capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, .JR., in his
capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.

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

G.R. No. 199085

BENJAMIN S. ABALOS, SR., Petitioner,

vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO S.
BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO,
LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT
S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS;
CLARO A. ARELLANO, GEOUGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND
MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITEE ON THE 2004 AND 2007 ELECTION FRAUD, Respondents.

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

G.R. No.199118

GLORIA MACAPAGAL-ARROYO, Petitioner,

vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr.,
DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M.
PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.

DECISION

PERALTA, J.:

The Court is vested with the constitutional mandate to resolve justiciable controversies by
applying the rule of law with due deference to the right to due process, irrespective of the
standing in society of the parties involved. It is an assurance that in this jurisdiction, the wheels of
justice turn unimpeded by public opinion or clamor, but only for the ultimate end of giving each
and every member of society his just due without distinction.

Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and
Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in
G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal

Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections
(Comelec) Resolution No. 9266 "In the Matter of the Commission on Elections and Department
of Justice Joint Investigation on the Alleged Election Offenses Committed during the 2004 and
2007 Elections Pursuant to Law"1 dated August 2, 2011; (2) Joint Order No. 001-2011 (Joint
Order) "Creating and Constituting a Joint DOJ-Comelec Preliminary Investigation Committee
[Joint Committee] and Fact-Finding Team on the 2004 and 2007 National Elections Electoral
Fraud and

Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure on the Conduct of
Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections
(Joint Committee Rules of Procedure)3 dated August 23, 2011; and (4) Initial Report of the Fact-
Finding Team dated October 20, 2011.4 The consolidated petitions and supplemental petitions
likewise assail the validity of the proceedings undertaken pursuant to the aforesaid issuances.

The Antecedents

Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating
the occurrence of massive electoral fraud and manipulation of election results in the 2004 and
2007 National Elections, on August 2, 2011, the Comelec issued Resolution No. 9266 approving
the creation of a committee jointly with the Department of Justice (DOJ), which shall conduct
preliminary investigation on the alleged election offenses and anomalies committed during the
2004 and 2007 elections.5

On August 4, 2011, the Secretary of Justice issued Department Order No. 6406 naming three (3)
of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and
constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections
electoral fraud and manipulation cases. The Joint Committee and the Fact-Finding Team are
composed of officials from the DOJ and the Comelec. Section 2 of the Joint Order lays down the
mandate of the Joint Committee, to wit:

Section 2. Mandate. – The Committee shall conduct the necessary preliminary investigation on
the basis of the evidence gathered and the charges recommended by the Fact-Finding Team
created and referred to in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and other election laws shall
be approved by the Comelec in accordance with the Comelec Rules of Procedure. For other
offenses, or those not covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the appropriate courts.7

The Fact-Finding Team,8 on the other hand, was created for the purpose of gathering real,
documentary, and testimonial evidence which can be utilized in the preliminary investigation to
be conducted by the Joint Committee. Its specific duties and functions as enumerated in Section
4 of the Joint Order are as follows:

a) Gather and document reports, intelligence information, and investigative leads from
official as well as unofficial sources and informants;

b) Conduct interviews, record testimonies, take affidavits of witnesses, and collate

material and relevant documentary evidence, such as, but not limited to, election
documents used in the 2004 and 2007 national elections. For security reasons, or to
protect the identities of informants, the Fact-Finding Team may conduct interviews or
document testimonies discreetly;

c) Assess and evaluate affidavits already executed and other documentary evidence
submitted or may be submitted to the Fact-Finding Team and/or Committee;

d) Identify the offenders, their offenses and the manner of their commission, individually
or in conspiracy, and the provisions of election and general criminal laws violated,
establish evidence for individual criminal and administrative liability and prosecution, and
prepare the necessary documentation, such as complaints and charge sheets for the
initiation of preliminary investigation proceedings against said individuals to be conducted
by the Committee;

e) Regularly submit to the Committee, the Secretary of Justice and the Chairman of the
Comelec periodic reports and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the Committee’s basis for immediately
commencing appropriate preliminary investigation proceedings, as provided under
Section 6 of this Joint Order; and

f) Upon the termination of its investigation, make a full and final report to the Committee,
the Secretary of Justice, and the Chairman of the Comelec.9

Pursuant to Section 710 of the Joint Order, on August 23, 2011, the Joint Committee promulgated
its Rules of Procedure.

The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report
would be the electoral fraud and manipulation of election results allegedly committed during the
May 14, 2007 elections. Thus, in its Initial Report11 dated October 20, 2011, the Fact-Finding
Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the
provinces of North and South Cotabato and Maguindanao were indeed perpetrated.12 The Fact-
Finding Team recommended that petitioner Abalos and ten (10) others13 be subjected to
preliminary investigation for electoral sabotage for conspiring to manipulate the election results in
North and South Cotabato. Twenty-six (26)14 persons, including petitioners GMA and Abalos,
were likewise recommended for preliminary investigation for electoral sabotage for manipulating
the election results in Maguindanao.15 Several persons were also recommended to be charged
administratively, while others,16 including petitioner Mike Arroyo, were recommended to be
subjected to further investigation.17 The case resulting from the investigation of the Fact-Finding
Team was docketed as DOJ-Comelec Case No. 001-2011.

Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a
Complaint-Affidavit18 for Electoral Sabotage against petitioners and twelve others19 and several
John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.

On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-
Comelec Case Nos. 001-2011 and 002-2011.20 On November 3, 2011, petitioners, through
counsel, appeared before the Joint Committee.21 On that preliminary hearing, the Joint Committee
consolidated the two DOJ-Comelec cases. Respondents therein were likewise ordered to submit
their Counter-Affidavits by November 14, 2011.22

Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.23 The petitions were eventually consolidated.

On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings24 before the
Joint Committee, in view of the pendency of his petition before the Court. On the same day,
petitioner GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam25 to require
Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of electoral sabotage. GMA contended
that for the crime of electoral sabotage to be established, there is a need to present election
documents allegedly tampered which resulted in the increase or decrease in the number of votes
of local and national candidates.26 GMA prayed that she be allowed to file her counter-affidavit
within ten (10) days from receipt of the requested documents.27 Petitioner Abalos, for his part,
filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),28 in view of the pendency of
his petition brought before the Court.

In an Order29 dated November 15, 2011, the Joint Committee denied the aforesaid motions of
petitioners. GMA subsequently filed a motion for reconsideration.30

On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later
indorsed to the Comelec.31 On November 18, 2011, after conducting a special session, the
Comelec en banc issued a Resolution32 approving and adopting the Joint Resolution subject to
modifications. The dispositive portion of the Comelec Resolution reads:

WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC Preliminary

Investigation Committee in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC Case No.
002-2011, upon the recommendation of the COMELEC’s own representatives in the Committee,
is hereby APPROVED and ADOPTED, subject to the following MODIFICATIONS:

1. That information/s for the crime of ELECTORAL SABOTAGE under Section 42 (b) of
R.A. 9369, amending Section 27 (b) of R.A. 6646, be filed against GLORIA
MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR., LINTANG H. BEDOL, DATU
ANDAL AMPATUAN, SR. and PETER REYES;

2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER, REUBEN

BASIAO, JAIME PAZ and NORIE K. UNAS be subjected to further investigation;
 3. That the charges against JOSE MIGUEL T. ARROYO, BONG SERRANO, ALBERTO
AGRA, ANDREI BON TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER,
JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency of evidence to establish
probable cause;

4. That the recommendation that ESTELITA B. ORBASE, ELIZA A. GASMIN, ELSA Z.

ATINEN, SALIAO S. AMBA, MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA,
RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION
CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T.
KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P. HANGKAL,
CHRISTINA ROAN M. DALOPE, and MACEDA L. ABO be administratively charged be
subjected to further review by this Commission to determine the appropriate charge/s
that may be filed against them;

5. That the findings of lack of probable cause against LILIAN S. SUAN-RADAM and
YOGIE G. MARTIRIZAR be REJECTED by reason of the pendency of their respective
cases before the Regional Trial Court of Pasay (Branch 114) and this Commission for the
same offense under consideration.

In the higher interest of justice and by reason of manifest attempts to frustrate the government’s
right to prosecute and to obtain speedy disposition of the present case pending before the
Commission, the Law Department and/or any COMELEC legal officers as may be authorized by
this Commission is hereby ORDERED to IMMEDIATELY PREPARE and FILE the necessary
Information/s before the appropriate court/s

SO ORDERED.33 (Emphasis supplied.)

On even date, pursuant to the above Resolution, the Comelec’s Law Department filed with the
Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal
Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.)
No. 9369, amending Section 27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-
04432-CR.34 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was
issued which was served on GMA on the same day.35

On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad
Cautelam36 with leave to allow the Joint Committee to resolve the motion for reconsideration filed
by GMA, to defer issuance of a warrant of arrest and a Hold Departure Order, and to proceed to
judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate
Ad Cautelam37 praying that its Resolution be vacated for being null and void. The RTC
nonetheless issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion
for Bail which was granted.

Issues

In G.R. No. 199082, petitioner Arroyo relies on the following grounds:

A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT ORDER IS AT WAR
WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION, HAVING BEEN CREATED WITH THE SOLE END IN VIEW OF
INVESTIGATING AND PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY,
SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS TO THE
EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V.
TRUTH COMMISSION AND COMPANION CASE.

B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO CONDUCT

PRELIMINARY INVESTIGATION.
 C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE COMMISSION
ON ELECTIONS - A CONSTITUTIONALLY INDEPENDENT BODY - WITH THE
DEPARTMENT OF JUSTICE – A POLITICAL AGENT OF THE EXECUTIVE –
DEMOLISHES THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS
PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE
CONSTITUTION.

D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC PRONOUNCEMENTS

OF THE PRESIDENT, HIS SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT CASES SHOULD BE
FILED AGAINST PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY
THE END OF 2011, THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR
BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO AND RELATED
CASES.

E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE TRAMPLES

UPON PETITIONER’S RIGHT TO A FAIR PROCEEDING BY AN INDEPENDENT AND
IMPARTIAL TRIBUNAL.

F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY, HAVE

ASSUMED JURISDICTION OVER THE SUBJECT MATTER SOUGHT TO BE
INVESTIGATED BY THE JOINT COMMITTEE, TO THE EXCLUSION OF ANY BODY,
INCLUDING THE JOINT COMMITTEE.38

In G.R. No. 199085, petitioner Abalos raises the following issues:

I.

DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-COMELEC FACT-
FINDING TEAM AND PRELIMINARY INVESTIGATON COMMITTEE VIOLATE
PETITIONER’S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW?

II.

DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-COMELEC FACT-

FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE VIOLATE
PETITIONER’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?

III.

DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF SEPARATION OF

POWERS BY CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE
POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL COURT?

IV.

DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY

INVESTIGATION COMMITTEE HAVE THE POWER AND LEGAL AUTHORITY TO
CONDUCT A PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL
SABOTAGE CASES WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE
OF?39

In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds:
 I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ, OSTENSIBLY ACTING
"JOINTLY" WITH THE COMELEC, HAS ACTED BEYOND THE LIMITS OF THE
CONSTITUTION, IN THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC.

II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS CONSTITUTIONAL

MANDATE "TO INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES
OF VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS
CONSTITUTING ELECTION FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE
IX-C, SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES)
IN FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH RESPONDENT
JUSTICE SECRETARY DE LIMA.

III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT COMMITTEE
RULES HAVE NOT BEEN PUBLISHED PURSUANT TO TAÑADA V. TUVERA, G.R. No.
L-63915 (29 DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT
LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL PETROLEUM
CORPORATION, G.R. No. 173918 (08 APRIL 2008), (SIC)40

We deferred the resolution of petitioners’ Motion for the Issuance of a TRO and, instead, required
the respondents to comment on the petitions.41

We likewise scheduled the consolidated cases for oral argument for which the parties were
directed to limit their respective discussions to the following issues:

I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-COMELEC
Preliminary Investigation Committee and Fact-Finding Team on the 2004 and 2007 National
Elections Electoral Fraud and Manipulation Cases" is constitutional in light of the following:

A. The due process clause of the 1987 Constitution

B. The equal protection clause of the 1987 Constitution

C. The principle of separation of powers

D. The independence of the COMELEC as a constitutional body

II. Whether or not the COMELEC has jurisdiction under the law to conduct preliminary
investigation jointly with the DOJ.

A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-Finding Team
and Preliminary Investigation Committee, and the COMELEC in the conduct of the preliminary
investigation and approval of the Joint Panel’s Resolution.42

The Court, thereafter, required the parties to submit their respective Memoranda.43

The Court’s Ruling

Procedural Issues

Respondents claim that Mike Arroyo’s petition is moot and that of GMA is moot and academic.
They explain that the Mike Arroyo petition presents no actual controversy that necessitates the
exercise by the Court of its power of judicial review, considering that he was not among those
indicted for electoral sabotage in the 2007 national elections as the Comelec dismissed the case
against him for insufficiency of evidence.44 Anent the 2004 national elections, the Fact-Finding
Team is yet to complete its investigation so Mike Arroyo’s apprehensions are merely speculative
and anticipatory.45 As to the GMA petition, respondents aver that any judgment of the Court will
have no practical legal effect because an Information has already been filed against her in
Branch 112, RTC of Pasay City.46 With the filing of the Information, the RTC has already acquired
jurisdiction over the case, including all issues relating to the constitutionality or legality of her
preliminary investigation.47 Respondents also claim that the issues relating to the constitutionality
and validity of the conduct of the preliminary investigation of GMA are best left to the trial court,
considering that it involves questions of fact.48 Respondents add that considering that the RTC
has concurrent jurisdiction to determine a constitutional issue, it will be practical for the Court to
allow the RTC to determine the constitutional issues in this case.49

We do not agree.

Mootness

It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an
actual case or controversy, that is, one which involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution.50 The case must not be moot or academic
or based on extra-legal or other similar considerations not cognizable by a court of justice.51

A case becomes moot and academic when it ceases to present a justiciable controversy so that
a declaration on the issue would be of no practical use or value.52 However, a case should not be
dismissed simply because one of the issues raised therein had become moot and academic by
the onset of a supervening event, whether intended or incidental, if there are other causes which
need to be resolved after trial.53

Here, the consolidated cases are not rendered moot and academic by the promulgation of the
Joint Resolution by the Joint Committee and the approval thereof by the Comelec. It must be
recalled that the main issues in the three petitions before us are the constitutionality and legality
of the creation of the Joint Committee and the Fact-Finding Team as well as the proceedings
undertaken pursuant thereto. The assailed Joint Order specifically provides that the Joint
Committee was created for purposes of investigating the alleged massive electoral fraud during
the 2004 and 2007 national elections. However, in the Fact-Finding Team’s Initial Report, the
team specifically agreed that the report would focus on the irregularities during the 2007
elections. Also, in its November 18, 2011 Resolution, the Comelec, while directing the filing of
information against petitioners Abalos and GMA, ordered that further investigations be conducted
against the other respondents therein. Apparently, the Fact-Finding Team’s and Joint

Committee’s respective mandates have not been fulfilled and they are, therefore, bound to
continue discharging their duties set forth in the assailed Joint Order. Moreover, petitioners
question the validity of the proceedings undertaken by the Fact-Finding Team and the Joint
Committee leading to the filing of information, on constitutional grounds. We are not, therefore,
barred from deciding on the petitions simply by the occurrence of the supervening events of filing
an information and dismissal of the charges.

Jurisdiction over the validity of the

conduct of the preliminary investigation

This is not the first time that the Court is confronted with the issue of jurisdiction to conduct
preliminary investigation and at the same time with the propriety of the conduct of preliminary
investigation. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG),54 the
Court resolved two issues, namely: (1) whether or not the PCGG has the power to conduct a
preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General
against Eduardo Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy
funds; and (2) on the assumption that it has jurisdiction to conduct such a preliminary
investigation, whether or not its conduct constitutes a violation of petitioner’s right to due process
and equal protection of the law.55 The Court decided these issues notwithstanding the fact that
Informations had already been filed with the trial court.

In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the issuance of a warrant
of arrest, the Court could not ignore the undue haste in the filing of the information and the
inordinate interest of the government in filing the same. Thus, this Court took time to determine
whether or not there was, indeed, probable cause to warrant the filing of information. This,
notwithstanding the fact that information had been filed and a warrant of arrest had been issued.
Petitioners therein came directly to this Court and sought relief to rectify the injustice that they
suffered.

Hierarchy of courts

Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of
courts. This principle requires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court.57 The Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
While this jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation of this
Court’s jurisdiction is allowed when there are special and important reasons therefor, clearly and
especially set out in the petition, as in the present case.58 In the consolidated petitions, petitioners
invoke exemption from the observance of the rule on hierarchy of courts in keeping with the
Court’s duty to determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws, and that they have not abused the
discretion given to them.59

It is noteworthy that the consolidated petitions assail the constitutionality of issuances and
resolutions of the DOJ and the Comelec. The general rule is that this Court shall exercise only
appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation.

However, such rule is subject to exception, that is, in circumstances where the Court believes
that resolving the issue of constitutionality of a law or regulation at the first instance is of
paramount importance and immediately affects the social, economic, and moral well-being of the
people.60

This case falls within the exception. An expeditious resolution of the issues raised in the petitions
is necessary. Besides, the Court has entertained a direct resort to the Court without the requisite
motion for reconsideration filed below or without exhaustion of administrative remedies where
there is an urgent necessity for the resolution of the question and any further delay would
prejudice the interests of the government or of the petitioners and when there is an alleged
violation of due process, as in the present case.61 We apply the same relaxation of the Rules in
the present case and, thus, entertain direct resort to this Court.

Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee

Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the
Comelec. Paragraph (6) thereof vests in the Comelec the power to:

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

This was an important innovation introduced by the 1987 Constitution, because the above-
quoted provision was not in the 1935 and 1973 Constitutions.62
The grant to the Comelec of the power to investigate and prosecute election offenses as an
adjunct to the enforcement and administration of all election laws is intended to enable the
Comelec to effectively insure to the people the free, orderly, and honest conduct of elections.
The failure of the Comelec to exercise this power could result in the frustration of the true will of
the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen
to vote.63

The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of
Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit:

Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have
the exclusive power to conduct preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however, That in the event that the Commission
fails to act on any complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal [public prosecutor], or with the Ministry Department of
Justice for proper investigation and prosecution, if warranted.

Under the above provision of law, the power to conduct preliminary investigation is vested
exclusively with the Comelec. The latter, however, was given by the same provision of law the
authority to avail itself of the assistance of other prosecuting arms of the government.64 Thus,
under Section 2,65 Rule 34 of the Comelec Rules of Procedure, provincial and city prosecutors
and their assistants are given continuing authority as deputies to conduct preliminary
investigation of complaints involving election offenses under election laws and to prosecute the
same. The complaints may be filed directly with them or may be indorsed to them by the
petitioner or its duly authorized representatives.66

Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary
investigation had been lodged with the Comelec, the prosecutors had been conducting
preliminary investigations pursuant to the continuing delegated authority given by the Comelec.
The reason for this delegation of authority has been explained in Commission on Elections v.
Español:67

The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt
investigation and dispensation of election cases as an indispensable part of the task of securing
fine, orderly, honest, peaceful and credible elections. Enfeebled by lack of funds and the
magnitude of its workload, the petitioner does not have a sufficient number of legal officers to
conduct such investigation and to prosecute such cases.68

Moreover, as we acknowledged in People v. Basilla,69 the prompt and fair investigation and
prosecution of election offenses committed before or in the course of nationwide elections would
simply not be possible without the assistance of provincial and city fiscals prosecutors and their
assistants and staff members, and of the state prosecutors of the DOJ.70

Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369,71 which
reads:

Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows:

SEC. 265. Prosecution. – The Commission shall, through its duly authorized legal officers, have
the power, concurrent with the other prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and to prosecute the same.72

As clearly set forth above, instead of a mere delegated authority, the other prosecuting arms of
the government, such as the DOJ, now exercise concurrent jurisdiction with the Comelec to
conduct preliminary investigation of all election offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any
act necessary to ensure the prompt and fair investigation and prosecution of election offenses.
Pursuant to the above constitutional and statutory provisions, and as will be explained further
below, we find no impediment for the Comelec and the DOJ to create the Joint Committee and
Fact-Finding Team for the purpose of conducting a thorough investigation of the alleged massive
electoral fraud and the manipulation of election results in the 2004 and 2007 national elections
relating in particular to the presidential and senatorial elections.73

Constitutionality of Joint-Order No. 001-2011

A. Equal Protection Clause

Petitioners claim that the creation of the Joint Committee and Fact-Finding Team is in violation of
the equal protection clause of the Constitution because its sole purpose is the investigation and
prosecution of certain persons and incidents. They argue that there is no substantial distinction
between the allegations of massive electoral fraud in 2004 and 2007, on the one hand, and
previous and subsequent national elections, on the other hand; and no substantial distinction
between petitioners and the other persons or public officials who might have been involved in
previous election offenses. They insist that the Joint Panel was created to target only the Arroyo
Administration as well as public officials linked to the Arroyo Administration. To bolster their
claim, petitioners explain that Joint Order No. 001-2011 is similar to Executive Order No. 1
(creating the Philippine Truth Commission) which this Court had already nullified for being

violative of the equal protection clause.

Respondents, however, refute the above contentions and argue that the wide array of the
possible election offenses and broad spectrum of individuals who may have committed them, if
any, immediately negate the assertion that the assailed orders are aimed only at the officials of
the Arroyo Administration.

We agree with the respondents.

The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.74

The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of
2010:75

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the
laws is embraced in the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.

According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed. It requires public bodies and institutions to treat similarly-situated individuals in a similar
manner. The purpose of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express
terms of a statute or by its improper execution through the state's duly-constituted authorities. In
other words, the concept of equal justice under the law requires the state to govern impartially,
and it may not draw distinctions between individuals solely on differences that are irrelevant to a
legitimate governmental objective.76

Unlike the matter addressed by the Court’s ruling in Biraogo v. Philippine Truth Commission of
2010, Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials
of the Arroyo Administration and, therefore, it infringes the equal protection clause. The
Philippine Truth Commission of 2010 was expressly created for the purpose of investigating
alleged graft and corruption during the Arroyo Administration since Executive Order No.
177 specifically referred to the "previous administration"; while the Joint Committee was created for
the purpose of conducting preliminary investigation of election offenses during the 2004 and
2007 elections. While GMA and Mike Arroyo were among those subjected to preliminary
investigation, not all respondents therein were linked to GMA as there were public officers who
were investigated upon in connection with their acts in the performance of their official duties.
Private individuals were also subjected to the investigation by the Joint Committee.

The equal protection guarantee exists to prevent undue favor or privilege. It is intended to
eliminate discrimination and oppression based on inequality. Recognizing the existence of real
differences among men, it does not demand absolute equality. It merely requires that all persons
under like circumstances and conditions shall be treated alike both as to privileges conferred and
liabilities enforced.78

We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers
by the Constitution and by law and thus may, for every particular investigation, whether
commenced by complaint or on its own initiative, decide how best to pursue each investigation.
Since the Office of the Ombudsman is granted such latitude, its varying treatment of similarly
situated investigations cannot by itself be considered a violation of any of the parties’ rights to the
equal protection of the laws.79 This same doctrine should likewise apply in the present case.

Thus, as the constitutional body granted with the broad power of enforcing and administering all
laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall,80 and tasked to ensure free, orderly, honest, peaceful, and credible elections,81 the Comelec
has the authority to determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national elections setting
forth the guidelines to be observed in the conduct of the elections. This shows that every election
is distinct and requires different guidelines in order to ensure that the rules are updated to
respond to existing circumstances.

Moreover, as has been practiced in the past, complaints for violations of election laws may be
filed either with the Comelec or with the DOJ. The Comelec may even initiate, motu proprio,
complaints for election offenses.82

Pursuant to law and the Comelec’s own Rules, investigations may be conducted either by the
Comelec itself through its law department or through the prosecutors of the DOJ. These varying
procedures and treatment do not, however, mean that respondents are not treated alike. Thus,
petitioners’ insistence of infringement of their constitutional right to equal protection of the law is
misplaced.

B. Due Process

Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial
judge because it is all at once the evidence-gatherer, prosecutor and judge. They explain that
since the Fact-Finding Team has found probable cause to subject them to preliminary
investigation, it is impossible for the Joint Committee to arrive at an opposite conclusion.
Petitioners likewise express doubts of any possibility that the Joint Committee will be fair and
impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly expressed
prejudgment against petitioners through their statements captured by the media.
For their part, respondents contend that petitioners failed to present proof that the President of
the Philippines, Secretary of Justice, and Chairman of the Comelec actually made the statements
allegedly prejudging their case and in the context in which they interpreted them. They likewise
contend that assuming that said statements were made, there was no showing that Secretary De
Lima had tried to intervene in the investigation to influence its outcome nor was it proven that the
Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order No. 001-
2011 created two bodies, the Fact-Finding Team and the Joint Committee, with their respective
mandates. Hence, they cannot be considered as one.

We find for respondents.

It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the
requirements of both substantive and procedural due process.83 Preliminary investigation is
considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature
of his functions, acts as a quasi-judicial officer.84 The authority of a prosecutor or investigating
officer duly empowered to preside over or to conduct a preliminary investigation is no less than
that of a municipal judge or even an RTC Judge.85 Thus, as emphasized by the Court in Ladlad v.
Velasco:86

x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid,
giving the impression that their noble office is being used or prostituted, wittingly or unwittingly,
for political ends, or other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice evenhandedly, without fear or favor to any and all
litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may public's perception of the impartiality of the
prosecutor be enhanced.87

In this case, as correctly pointed out by respondents, there was no showing that the statements
claimed to have prejudged the case against petitioners were made by Secretary De Lima and
Chairman Brillantes or were in the prejudicial context in which petitioners claimed the statements
were made. A reading of the statements allegedly made by them reveals that they were just
responding to hypothetical questions in the event that probable cause would eventually be found
by the Joint Committee.

More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked
to conduct the requisite preliminary investigation against petitioners, made biased statements
that would convey to the public that the members were favoring a particular party. Neither did the
petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of
the Comelec intervened in the conduct of the preliminary investigation or exerted undue pressure
on their subordinates to tailor their decision with their public declarations and adhere to a pre-
determined result.88 Moreover, insofar as the Comelec is concerned, it must be emphasized that
the constitutional body is collegial. The act of the head of a collegial body cannot be considered
as that of the entire body itself.89 In equating the alleged bias of the above-named officials with
that of the Joint Committee, there would be no arm of the government credible enough to
conduct a preliminary investigation.90

It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the
Fact-Finding Team tasked to gather real, documentary and testimonial evidence which can be
utilized in the preliminary investigation to be conducted by the Joint Committee; and (2) the Joint
Committee mandated to conduct preliminary investigation. It is, therefore, inaccurate to say that
there is only one body which acted as evidence-gatherer, prosecutor and judge.

C. Separation of powers

Petitioners claim that the Joint Panel is a new public office as shown by its composition, the
creation of its own Rules of Procedure, and the source of funding for its operation. It is their
position that the power of the DOJ to investigate the commission of crimes and the Comelec’s
constitutional mandate to investigate and prosecute violations of election laws do not include the
power to create a new public office in the guise of a joint committee. Thus, in creating the Joint
Panel, the DOJ and the Comelec encroached upon the power of the Legislature to create public
office.

Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not
new public offices, but merely collaborations between two existing government agencies sharing
concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are existing
officers of the DOJ and the Comelec who exercise duties and functions that are already vested in
them.

Again, we agree with respondents.

As clearly explained above, the Comelec is granted the power to investigate, and where
appropriate, prosecute cases of election offenses. This is necessary in ensuring free, orderly,
honest, peaceful and credible elections. On the other hand, the DOJ is mandated to administer
the criminal justice system in accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of the correctional
system.91 It is specifically empowered to "investigate the commission of crimes, prosecute
offenders and administer the probation and correction system."92 Also, the provincial or city
prosecutors and their assistants, as well as the national and regional state prosecutors, are
specifically named as the officers authorized to conduct preliminary investigation.93 Recently, the
Comelec, through its duly authorized legal offices, is given the power, concurrent with the other
prosecuting arms of the government such as the DOJ, to conduct preliminary investigation of all
election offenses.94

Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint
Order which give the DOJ and the Comelec the power to conduct preliminary investigation. No
new power is given to them by virtue of the assailed order. As to the members of the Joint
Committee and Fact-Finding Team, they perform such functions that they already perform by
virtue of their current positions as prosecutors of the DOJ and legal officers of the Comelec.
Thus, in no way can we consider the Joint Committee as a new public office.

D. Independence of the Comelec

Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its
constitutional mandate to investigate and, where appropriate, to prosecute cases of violation of
election laws including acts or omissions constituting election frauds, offenses, and malpractices
in favor of the Executive Department acting through the DOJ Secretary. Under the set- up, the
Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a
DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and has
acceded to share its exercise of judgment and discretion with the Executive Branch.

We do not agree.

Section 1,95 Article IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as independent. Although essentially executive in nature, they are not under the
control of the President of the Philippines in the discharge of their respective functions.96 The
Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest,
peaceful, and credible elections and to serve as the guardian of the people’s sacred right of
suffrage – the citizenry’s vital weapon in effecting a peaceful change of government and in
achieving and promoting political stability.97

Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the
exclusive authority to investigate and prosecute election offenses. In the discharge of this
exclusive power, the Comelec was given the right to avail and, in fact, availed of the assistance
of other prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of
this continuing authority, the state prosecutors and the provincial or city prosecutors were
authorized to receive the complaint for election offense and delegate the conduct of investigation
to any of their assistants. The investigating prosecutor, in turn, would make a recommendation
either to dismiss the complaint or to file the information. This recommendation is subject to the
approval of the state, provincial or city prosecutor, who himself may file the information with the
proper court if he finds sufficient cause to do so, subject, however, to the accused’s right to
appeal to the Comelec.98

Moreover, during the past national and local elections, the Comelec issued
Resolutions99 requesting the Secretary of Justice to assign prosecutors as members of Special
Task Forces to assist the Comelec in the investigation and prosecution of election offenses.
These Special Task Forces were created because of the need for additional lawyers to handle
the investigation and prosecution of election offenses.

Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct
preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not be
attained. This delegation of power, otherwise known as deputation, has long been recognized
and, in fact, been utilized as an effective means of disposing of various election offense cases.
Apparently, as mere deputies, the prosecutors played a vital role in the conduct of preliminary
investigation, in the resolution of complaints filed before them, and in the filing of the informations
with the proper court.

As pointed out by the Court in Barangay Association for National Advancement and
Transparency (BANAT) Party-List v. Commission on Elections,100 the grant of exclusive power to
investigate and prosecute cases of election offenses to the Comelec was not by virtue of the
Constitution but by the Omnibus Election Code which was eventually amended by Section 43 of
R.A. 9369. Thus, the DOJ now conducts preliminary investigation of election offenses
concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been
allowed to conduct preliminary investigation and file the necessary information by virtue only of a
delegated authority, they now have better grounds to perform such function by virtue of the
statutory grant of authority. If deputation was justified because of lack of funds and legal officers
to ensure prompt and fair investigation and prosecution of election offenses, the same
justification should be cited to justify the grant to the other prosecuting arms of the government of
such concurrent jurisdiction.

In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee.
While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ
officials, it does not necessarily follow that the Comelec is inferior. Under the Joint Order,
resolutions of the Joint Committee finding probable cause for election offenses shall still be
approved by the Comelec in accordance with the Comelec Rules of Procedure. This shows that
the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way
can we say that the Comelec has thereby abdicated its independence to the executive
department.

The text and intent of the constitutional provision granting the Comelec the authority to
investigate and prosecute election offenses is to give the Comelec all the necessary and
incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and
credible elections.101 The Comelec should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for which it was created.102 We
may not agree fully with its choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this Court should not interfere.103 Thus, Comelec Resolution No. 9266,
approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as
an abdication of the constitutional body’s independence but as a means to fulfill its duty of
ensuring the prompt investigation and prosecution of election offenses as an adjunct of its
mandate of ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate crimes,
prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from
acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise
concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine
of concurrent jurisdiction means equal jurisdiction to deal with the same subject
matter.104 Contrary to the contention of the petitioners, there is no prohibition on simultaneous
exercise of power between two coordinate bodies. What is prohibited is the situation where one
files a complaint against a respondent initially with one office (such as the Comelec) for
preliminary investigation which was immediately acted upon by said office and the re-filing of
substantially the same complaint with another office (such as the DOJ). The subsequent
assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it
is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise
jurisdiction to the exclusion of the others.105 As cogently held by the Court in Department of
Justice v. Hon. Liwag:106

To allow the same complaint to be filed successively before two or more investigative bodies
would promote multiplicity of proceedings. It would also cause undue difficulties to the
respondent who would have to appear and defend his position before every agency or body
where the same complaint was filed. This would lead hapless litigants at a loss as to where to
appear and plead their cause or defense.

There is yet another undesirable consequence. There is the distinct possibility that the two
bodies exercising jurisdiction at the same time would come up with conflicting resolutions
regarding the guilt of the respondents.

Finally, the second investigation would entail an unnecessary expenditure of public funds, and
the use of valuable and limited resources of Government, in a duplication of proceedings already
started with the Ombudsman.107

None of these problems would likely arise in the present case. The Comelec and the DOJ
themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the
preliminary investigation was conducted on the basis of two complaints – the initial report of the
Fact-Finding Team and the complaint of Senator Pimentel – both complaints were filed with the
Joint Committee. Consequently, the complaints were filed with and the preliminary investigation
was conducted by only one investigative body. Thus, we find no reason to disallow the exercise
of concurrent jurisdiction jointly by those given such authority. This is especially true in this case
given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary
investigation also serves to maximize the resources and manpower of both the Comelec and the
DOJ for the prompt disposition of the cases.

Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by
the Comelec involving Radam and Martirizar bars the creation of the Joint Committee for
purposes of conducting another preliminary investigation. In short, they claim that the exercise by
the Comelec of its jurisdiction to investigate excludes other bodies such as the DOJ and the Joint
Committee from taking cognizance of the case. Petitioners add that the investigation should have
been conducted also by the Comelec as the 2007 cases of Radam and Martirizar include several
John Does and Jane Does.

We do not agree.

While the Comelec conducted the preliminary investigation against Radam, Martirizar and other
unidentified persons, it only pertains to election offenses allegedly committed in North and South
Cotabato. On the other hand, the preliminary investigation conducted by the Joint Committee
(involving GMA) pertains to election offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec to choose the means of fulfilling its duty
of ensuring the prompt investigation and prosecution of election offenses as discussed earlier,
there is nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said
investigation. To reiterate, in no way can we consider this as an act abdicating the independence
of the Comelec.

Publication Requirement

In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the
Comelec is governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to
promulgate new Rules as may be complementary to the DOJ and Comelec Rules.

As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and
the DOJ to exercise powers which are already vested in them by the Constitution and other
existing laws, it need not be published for it to be valid and effective. A close examination of the
Joint Committee’s Rules of Procedure, however, would show that its provisions affect the public.
Specifically, the following provisions of the Rules either restrict the rights of or provide remedies
to the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer
entertain complaints from the public as soon as the Fact-Finding Team submits its final report,
except for such complaints involving offenses mentioned in the Fact-Finding Team’s Final
Report"; (2) Section 2 states that "the Joint Committee shall not entertain a Motion to Dismiss";
and (3) Section 5 provides that a Motion for Reconsideration may be availed of by the aggrieved
parties against the Joint Committee’s Resolution. Consequently, publication of the Rules is
necessary.

The publication requirement covers not only statutes but administrative regulations and
issuances, as clearly outlined in Tañada v. Tuvera:108 effectivity, which shall begin fifteen days
after publication unless a different effectivity date is fixed by the legislature. Covered by this rule
are presidential decrees and executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution. Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law pursuant also to a valid
delegation. Interpretative regulations and those merely internal in nature, that is, regulating only
the personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of their
duties.109

As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of

Justice,110 where the Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal
arrangement between the DOJ and the Office of the Ombudsman outlining the authority and
responsibilities among prosecutors of both offices in the conduct of preliminary investigation, the
assailed Joint Committee’s Rules of Procedure regulate not only the prosecutors of the DOJ and
the Comelec but also the conduct and rights of persons, or the public in general. The publication
requirement should, therefore, not be ignored.

Publication is a necessary component of procedural due process to give as wide publicity as

possible so that all persons having an interest in the proceedings may be notified thereof.111 The
requirement of publication is intended to satisfy the basic requirements of due process. It is
imperative for it will be the height of injustice to punish or otherwise burden a citizen for the
transgressions of a law or rule of which he had no notice whatsoever.112

Nevertheless, even if the Joint Committee’s Rules of Procedure is ineffective for lack of
publication, the proceedings undertaken by the Joint Committee are not rendered null and void
for that reason, because the preliminary investigation was conducted by the Joint Committee
pursuant to the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the
1993 Comelec Rules of Procedure.
Validity of the Conduct of
Preliminary Investigation

In her Supplemental Petition,113 GMA outlines the incidents that took place after the filing of the
instant petition, specifically the issuance by the Joint Committee of the Joint Resolution, the
approval with modification of such resolution by the Comelec and the filing of information and the
issuance of a warrant of arrest by the RTC. With these supervening events, GMA further assails
the validity of the proceedings that took place based on the following additional grounds: (1) the
undue and unbelievable haste attending the Joint Committee’s conduct of the preliminary
investigation, its resolution of the case, and its referral to and approval by the Comelec, taken in
conjunction with the statements from the Office of the President, demonstrate a deliberate and
reprehensible pattern of abuse of inalienable rights and a blatant disregard of the envisioned
integrity and independence of the Comelec; (2) as it stands, the creation of the Joint Committee
was for the singular purpose of railroading the proceedings in the prosecution of the petitioner
and in flagrant violation of her right to due process and equal protection of the laws; (3) the
proceedings of the Joint Committee cannot be considered impartial and fair, considering that
respondents have acted as law enforcers, who conducted the criminal investigation, gathered
evidence and thereafter ordered the filing of complaints, and at the same time authorized
preliminary investigation based on the complaints they caused to be filed; (4) the Comelec
became an instrument of oppression when it hastily approved the resolution of the Joint
Committee even if two of its members were in no position to cast their votes as they admitted to
not having yet read the voluminous records of the cases; and (5) flagrant and repeated violations
of her right to due process at every stage of the proceedings demonstrate a deliberate attempt to
single out petitioner through the creation of the Joint Committee.114

In their Supplement to the Consolidated Comment,115 respondents accuse petitioners of violating

the rule against forum shopping. They contend that in filing the Supplemental Petition before the
Court, the Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to Vacate Ad
Cautelam with the Comelec, GMA raises the common issue of whether or not the proceedings
before the Joint Committee and the Comelec are null and void for violating the Constitution.
Respondents likewise claim that the issues raised in the supplemental petition are factual which
is beyond the power of this Court to decide.

We cannot dismiss the cases before us on the ground of forum shopping.

Forum shopping is the act of a party against whom an adverse judgment has been rendered in
one forum, of seeking another and possibly favorable opinion in another forum other than by
appeal or the special civil action of certiorari.116 There can also be forum shopping when a party
institutes two or more suits in different courts, either simultaneously or successively, in order to
ask the courts to rule on the same and related causes and/or to grant the same or substantially
the same reliefs on the supposition that one or the other court would make a favorable
disposition or increase a party’s chances of obtaining a favorable decision or action.117

Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus
Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec,
emphasizing the unbelievable haste committed by the Joint Committee and the Comelec in
disposing of the cases before them. However, a plain reading of the allegations in GMA’s motion
before the RTC would show that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in abeyance the issuance of the
warrant of arrest, considering that her motion for reconsideration of the denial of her motion to be
furnished copies of documents was not yet acted upon by the Joint Committee. If at all the
constitutional issue of violation of due process was raised, it was merely incidental. More
importantly, GMA raised in her motion with the RTC the finding of probable cause as she sought
the judicial determination of probable cause which is not an issue in the petitions before us.
GMA’s ultimate prayer is actually for the court to defer the issuance of the warrant of arrest.
Clearly, the reliefs sought in the RTC are different from the reliefs sought in this case. Thus,
there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised
therein are substantially similar to the issues in the supplemental petition which, therefore, strictly
speaking, warrants outright dismissal on the ground of forum shopping, we cannot do so in this
case in light of the due process issues raised by GMA.118 It is worthy to note that the main issues
in the present petitions are the constitutionality of the creation of the Joint Panel and the validity
of the proceedings undertaken pursuant thereto for alleged violation of the constitutional right to
due process. In questioning the propriety of the conduct of the preliminary investigation in her
Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of
the Joint Committee and the Comelec. There is, therefore, no impediment for the Court to rule on
the validity of the conduct of preliminary investigation.

In Uy v. Office of the Ombudsman,119 the Court explained the nature of preliminary investigation,
to wit:

A preliminary investigation is held before an accused is placed on trial to secure the innocent
against hasty, malicious, and oppressive prosecution; to protect him from an open and public
accusation of a crime, as well as from the trouble, expenses, and anxiety of a public trial. It is
also intended to protect the state from having to conduct useless and expensive trials. While the
right is statutory rather than constitutional, it is a component of due process in administering
criminal justice. The right to have a preliminary investigation conducted before being bound for
trial and before being exposed to the risk of incarceration and penalty is not a mere formal or
technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation
is to deprive him of the full measure of his right to due process.120

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an
individual the difference between months if not years of agonizing trial and possibly jail term, on
the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the
right to a preliminary investigation as not a mere formal or technical right but a substantive one,
forming part of due process in criminal justice.121

In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process
rights such as the right to be furnished a copy of the complaint, the affidavits, and other
supporting documents, and the right to submit counter-affidavits, and other supporting
documents in her defense.122 Admittedly, GMA received the notice requiring her to submit her
counter-affidavit. Yet, she did not comply, allegedly because she could not prepare her counter-
affidavit. She claimed that she was not furnished by Senator Pimentel pertinent documents that
she needed to adequately prepare her counter-affidavit.

In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to furnish her with documents
referred to in his complaint-affidavit and for production of election documents as basis for the
charge of electoral sabotage, GMA prayed that the Joint Committee issue an Order directing the
Fact-Finding Team and Senator Pimentel to furnish her with copies of the following documents:

a. Complaint-affidavit and other relevant documents of Senator Aquilino Pimentel III filed
before the Commission on Elections against Attys. Lilia Suan-Radam and Yogie
Martirizar, as well as the Informations filed in the Regional Trial Court of Pasay City,
Branch 114 in Criminal Case Nos. R-PSU-11-03190-CR to R-PSU-11-03200-CR.

b. Records in the petitions filed by complainant Pimentel before the National Board of
Canvassers, specifically in NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and
07-163.

c. Documents which served as basis in the allegations of "Significant findings specific to

the protested municipalities in the Province of Maguindanao."
 d. Documents which served as basis in the allegations of "Significant findings specific to
the protested municipalities in the Province of Lanao del Norte."

e. Documents which served as basis in the allegations of "Significant findings specific to

the protested municipalities in the Province of Shariff Kabunsuan."

f. Documents which served as basis in the allegations of "Significant findings specific to

the protested municipalities in the Province of Lanao del Sur."

g. Documents which served as basis in the allegations of "Significant findings specific to

the protested municipalities in the Province of Sulu."

h. Documents which served as basis in the allegations of "Significant findings specific to

the protested municipalities in the Province of Basilan."

i. Documents which served as basis in the allegations of "Significant findings specific to

the protested municipalities in the Province of Sultan Kudarat."124

GMA likewise requested the production of election documents used in the Provinces of South
and North Cotabato and Maguindanao.125

The Joint Committee, however, denied GMA’s motion which carried with it the denial to extend
the filing of her counter-affidavit. Consequently, the cases were submitted for resolution sans
GMA’s and the other petitioners’ counter-affidavits. This, according to GMA, violates her right to
due process of law.

We do not agree.

GMA’s insistence of her right to be furnished the above-enumerated documents is based on

Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which reads:

(b) x x x

The respondent shall have the right to examine the evidence submitted by the complainant which
he may not have been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying by the respondent at
his expense,

Objects as evidence need not be furnished a party but shall be made available for examination,
copying or photographing at the expense of the requesting party.126

Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right
of examination, to wit:

Sec. 6. Conduct of preliminary investigation. – (a) If on the basis of the complaint, affidavits and
other supporting evidence, the investigating officer finds no ground to continue with the inquiry,
he shall recommend the dismissal of the complaint and shall follow the procedure prescribed in
Sec. 8 (c) of this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto
a copy of the complaint, affidavits and other supporting documents giving said respondent ten
(10) days from receipt within which to submit counter-affidavits and other supporting documents.
The respondent shall have the right to examine all other evidence submitted by the
complainant.127
Clearly from the above-quoted provisions, the subpoena issued against respondent therein
should be accompanied by a copy of the complaint and the supporting affidavits and documents.
GMA also has the right to examine documents but such right of examination is limited only to the
documents or evidence submitted by the complainants (Senator Pimentel and the Fact-Finding
Team) which she may not have been furnished and to copy them at her expense.

While it is true that Senator Pimentel referred to certain election documents which served as
bases in the allegations of significant findings specific to the protested municipalities involved,
there were no annexes or attachments to the complaint filed.128 As stated in the Joint Committee’s
Order dated November 15, 2011 denying GMA’s Omnibus Motion Ad Cautelam, Senator
Pimentel was ordered to furnish petitioners with all the supporting evidence129 However, Senator
Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Team’s
Initial Report.130 Therefore, when GMA was furnished with the documents attached to the Initial
Report, she was already granted the right to examine as guaranteed by the Comelec Rules of
Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by
the complainants to the Committee. If there are other documents that were referred to in Senator
Pimentel’s complaint but were not submitted to the Joint Committee, the latter considered those
documents unnecessary at that point (without foreclosing the relevance of other evidence that
may later be presented during the trial)131 as the evidence submitted before it were considered
adequate to find probable cause against her.132 Anyway, the failure of the complainant to submit
documents supporting his allegations in the complaint may only weaken his claims and
eventually works for the benefit of the respondent as these merely are allegations unsupported
by independent evidence.

We must, however, emphasize at this point that during the preliminary investigation, the
complainants are not obliged to prove their cause beyond reasonable doubt. It would be unfair to
expect them to present the entire evidence needed to secure the conviction of the accused prior
to the filing of information.133 A preliminary investigation is not the occasion for the full and
exhaustive display of the parties’ respective evidence but the presentation only of such evidence
as may engender a well-grounded belief that an offense has been committed and that the
accused is probably guilty thereof and should be held for trial.134 Precisely there is a trial to allow
the reception of evidence for the prosecution in support of the charge.135

With the denial of GMA’s motion to be furnished with and examine the documents referred to in
Senator Pimentel’s complaint, GMA’s motion to extend the filing of her counter-affidavit and
countervailing evidence was consequently denied. Indeed, considering the nature of the crime for
which GMA was subjected to preliminary investigation and the documents attached to the
complaint, it is incumbent upon the Joint Committee to afford her ample time to examine the
documents submitted to the Joint Committee in order that she would be able to prepare her
counter-affidavit. She cannot, however, insist to examine documents not in the possession and
custody of the Joint Committee nor submitted by the complainants. Otherwise, it might cause
undue and unnecessary delay in the disposition of the cases. This undue delay might result in
the violation of the right to a speedy disposition of cases as enshrined in Section 16, Article III of
the Constitution which states that "all persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies." The constitutional right to
speedy disposition of cases is not limited to the accused in criminal proceedings but extends to
all parties in all cases, including civil and administrative cases, and in all proceedings, including
judicial and quasi-judicial hearings.136 Any party to a case has the right to demand on all officials
tasked with the administration of justice to expedite its disposition.137 Society has a particular
interest in bringing swift prosecutions, and the society’s representatives are the ones who should
protect that interest.138

Even assuming for the sake of argument that the denial of GMA’s motion to be furnished with
and examine the documents referred to in Senator Pimentel’s complaint carried with it the denial
to extend the filing of her counter-affidavit and other countervailing evidence rendering the
preliminary investigation irregular, such irregularity would not divest the RTC of jurisdiction over
the case and would not nullify the warrant of arrest issued in connection therewith, considering
that Informations had already been filed against petitioners, except Mike Arroyo. This would only
compel us to suspend the proceedings in the RTC and remand the case to the Joint Committee
so that GMA could submit her counter-affidavit and other countervailing evidence if she still opts
to. However, to do so would hold back the progress of the case which is anathema to the
accused’s right to speedy disposition of cases.

It is well settled that the absence or irregularity of preliminary investigation does not affect the
court’s jurisdiction over the case. Nor does it impair the validity of the criminal information or
render it defective. Dismissal is not the remedy.139 Neither is it a ground to quash the information
or nullify the order of arrest issued against the accused or justify the release of the accused from
detention.140 The proper course of action that should be taken is to hold in abeyance the
proceedings upon such information and to remand the case for the conduct of preliminary
investigation.141

In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good Government

(PCGG)142 and Allado v. Diokno,143 we dismissed the criminal cases and set aside the informations
and warrants of arrest. In Cojuangco, we dismissed the criminal case because the information
was filed by the PCGG which we declared to be unauthorized to conduct the preliminary
investigation and, consequently, file the information as it did not possess the cold neutrality of an
impartial judge. In Allado, we set aside the warrant of arrest issued against petitioners therein
and enjoined the trial court from proceeding further for lack of probable cause. For one, there
was serious doubt on the reported death of the victim in that case since the corpus delicti had not
been established nor had his remains been recovered;and based on the evidence submitted,
there was nothing to incriminate petitioners therein. In this case, we cannot reach the same
conclusion because the Information filed before the RTC of Pasay City was filed by the Comelec
en banc which had the authority to file the information for electoral sabotage and because the
presence or absence of probable cause is not an issue herein. As can be gleaned from their
assignment of errors/issues, petitioners did not question the finding of probable cause in any of
their supplemental petitions. It was only in GMA’s memorandum where she belatedly included a
discussion on the "insufficiency" of the evidence supporting the finding of probable cause for the
filing of the Information for electoral sabotage against her.144 A closer look at her arguments,
however, would show that they were included only to highlight the necessity of examining the
election documents GMA requested to see before she could file her counter-affidavit. At any rate,
since GMA failed to submit her counter-affidavit and other countervailing evidence within the
period required by the Joint Committee, we cannot excuse her from non-compliance.

There might have been overzealousness on the part of the Joint Committee in terminating the
investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the
information in court. However, speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious performance of functions.145 The
orderly administration of justice remains the paramount consideration with particular regard to the
peculiar circumstances of each case.146 To be sure, petitioners were given the opportunity to
present countervailing evidence. Instead of complying with the Joint Committee’s directive,
several motions were filed but were denied by the Joint Committee. Consequently, petitioners’
right to submit counter-affidavit and countervailing evidence was forfeited. Taking into account
the constitutional right to speedy disposition of cases and following the procedures set forth in
the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee
finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed
its task and filed the information in court. Indeed, petitioners were given the opportunity to be
heard. They even actively participated in the proceedings and in fact filed several motions before
the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases,
unnecessary delays should be avoided.

Finally, we take judicial notice that on February 23, 2012, GMA was already arraigned and
entered a plea of "not guilty" to the charge against her and thereafter filed a Motion for Bail which
has been granted. Considering that the constitutionality of the creation of the Joint Panel is
sustained, the actions of the Joint Committee and Fact-Finding Team are valid and effective. As
the information was filed by the Commission authorized to do so, its validity is sustained. Thus,
we consider said entry of plea and the Petition for Bail waiver on the part of GMA of her right to
submit counter-affidavit and countervailing evidence before the Joint Committee, and recognition
of the validity of the information against her. Her act indicates that she opts to avail of judicial
remedies instead of the executive remedy of going back to the Joint Committee for the
submission of the counter-affidavit and countervailing evidence. Besides, as discussed earlier,
the absence or irregularity of preliminary investigation does not affect the court’s jurisdiction over
the case nor does it impair the validity of the criminal information or render it defective.

It must be stressed, however, that this supervening event does not render the cases before the
Court moot and academic as the main issues raised by petitioners are the constitutionality of the
creation of the Joint Committee and the Fact-Finding Team and the validity of the proceedings
undertaken pursuant to their respective mandates.

The Court notes that the Joint Committee and the Comelec have not disposed of the cases of the
other respondents subjects of the preliminary investigation as some of them were subjected to
further investigation. In order to remove the cloud of doubt that pervades that petitioners are
being singled out, it is to the best interest of all the parties concerned that the Joint Committee
and the Comelec terminate the proceedings as to the other respondents therein and not make a
piecemeal disposition of the cases.

A peripheral issue which nonetheless deserves our attention is the question about the credibility
of the Comelec brought about by the alleged professional relationship between Comelec
Chairman Brillantes on one hand and the complainant Senator Pimentel and Fernando Poe, Jr.
(FPJ), GMA’s rival in the 2004 elections, on the other hand; and by the other
Commissioners’147 reasons for their partial inhibition. To be sure, Chairman Brillantes’ relationship
with FPJ and Senator Pimentel is not one of the grounds for the mandatory disqualification of a
Commissioner. At its most expansive, it may be considered a ground for voluntary inhibition
which is indeed discretionary as the same was primarily a matter of conscience and sound
discretion on the part of the Commissioner judge based on his or her rational and logical
assessment of the case.148 Bare allegations of bias and prejudice are not enough in the absence
of clear and convincing evidence to overcome the presumption that a judge will undertake his
noble role to dispense justice according to law and evidence without fear or favor.149 It being
discretionary and since Commissioner Brillantes was in the best position to determine whether or
not there was a need to inhibit from the case, his decision to participate in the proceedings, in
view of higher interest of justice, equity and public interest, should be respected. While a party
has the right to seek the inhibition or disqualification of a judge (or prosecutor or Commissioner)
who does not appear to be wholly free, disinterested, impartial, and independent in handling the
case, this right must be weighed with his duty to decide cases without fear of repression.150

Indeed, in Javier v. Comelec,151 the Court set aside the Comelec’s decision against Javier when it
was disclosed that one of the Commissioners who had decided the case was a law partner of
Javier’s opponent and who had refused to excuse himself from hearing the case. Javier,
however, is not applicable in this case. First, the cited case involves the Comelec’s exercise of its
adjudicatory function as it was called upon to resolve the propriety of the proclamation of the
winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for
inhibition/disqualification were applicable. Second, the case arose at the time where the purity of
suffrage has been defiled and the popular will scorned through the confabulation of those in
authority.152 In other words, the controversy arose at the time when the public confidence in the
Comelec was practically nil because of its transparent bias in favor of the administration.153 Lastly,
in determining the propriety of the decision rendered by the Comelec, the Court took into
consideration not only the relationship (being former partners in the law firm) between private
respondents therein, Arturo F. Pacificador, and then Comelec Commissioner Jaime Opinion
(Commissioner Opinion) but also the general attitude of the Comelec toward the party in power
at that time. Moreover, the questioned Comelec decision was rendered only by a division of the
Comelec. The Court thus concluded in Javier that Commissioner Opinion’s refusal to inhibit
himself divested the Comelec’s Second Division of the necessary vote for the questioned
decision and rendered the proceedings null and void.154

On the contrary, the present case involves only the conduct of preliminary investigation and the
questioned resolution is an act of the Comelec En Banc where all the Commissioners
participated and more than a majority (even if Chairman Brillantes is excluded) voted in favor of
the assailed Comelec resolution. Unlike in 1986, public confidence in the Comelec remains. The
Commissioners have already taken their positions in light of the claim of "bias and partiality" and
the causes of their partial inhibition. Their positions should be respected confident that in doing
so, they had the end in view of ensuring that the credibility of the Commission is not seriously
affected.

To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal
impediment to the creation of the Joint DOJ-Comelec Preliminary Investigation Committee and
Fact-Finding Team.

First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not
all respondents therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the
equal protection clause of the Constitution.

Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the
case as petitioners failed to prove that the Joint Panel itself showed such bias and partiality
against them. Neither was it shown that the Justice Secretary herself actually intervened in the
conduct of the preliminary investigation. More importantly, considering that the Comelec is a
collegial body, the perceived prejudgment of Chairman Brillantes as head of the Comelec cannot
be considered an act of the body itself.

Third, the assailed Joint Order did not create new offices because the Joint Committee and Fact-
Finding Team perform functions that they already perform by virtue of the Constitution, the
statutes, and the Rules of Court. 1âwphi1

Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its
independence in favor of the executive branch of government. Resolution No. 9266 was validly
issued by the Comelec as a means to fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest,
peaceful, and credible elections. The role of the DOJ in the conduct of preliminary investigation
of election offenses has long been recognized by the Comelec because of its lack of funds and
legal officers to conduct investigations and to prosecute such cases on its own. This is especially
true after R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to
conduct preliminary investigation of all election offenses. While we uphold the validity of Comelec
Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint Committee’s Rules of
Procedure infirm for failure to comply with the publication requirement. Consequently, Rule 112
of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure govern.

Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the
complaint, the affidavits, and other supporting documents submitted to the Joint Committee and
they were required to submit their counter-affidavit and countervailing evidence. As to petitioners
Mike Arroyo and Abalos, the pendency of the cases before the Court does not automatically
suspend the proceedings before the Joint Committee nor excuse them from their failure to file the
required counter-affidavits. With the foregoing disquisitions, we find no reason to nullify the
proceedings undertaken by the Joint Committee and the Comelec in the electoral sabotage
cases against petitioners.

WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED.
Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15,
2011, and the Fact-Finding Team’s Initial Report dated October 20, 2011, are declared VALID.
However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged
Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of
publication.

In view of the constitutionality of the Joint Panel and the proceedings having been conducted in
accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules
of Procedure, the conduct of the preliminary investigation is hereby declared VALID.

Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal
cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with
dispatch.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

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

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

On official leave
ROBERTO A. ABAD
MARTIN S. VILLARAMA, JR.*
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

CERTIFICATION

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

MARIA LOURDES P. A. SERENO

Chief Justice
Footnotes

* On official leave.

1
Rollo (G.R. No. 199118), pp. 47-48.

2
Id. at 49-53.

3
Id. at 54-57.

4
Id. at 58-139.

5
Id. at 47.

6
Id. at 50.

7
Id. at 50-51.

8
Composed of the following:

1. Asec. Zabedin M. Azis – Chairman;

2. CP Edward M. Togonon – DOJ Member;

3. CP Jorge G. Catalan, Jr. – DOJ Member;

4. Atty. Cesar A. Bacani – NBI Member;

5. Atty. Dante C. Jacinto – NBI Member;

6. Atty. Emmanuel E. Ignacio – Comelec Member; and

7. Atty. Arnulfo P. Sorreda – Comelec Member.

9
Rollo (G.R. No. 199118), pp. 51-52.

10
Section 7. Rules of Procedure. – Within forty-eight (48) hours from the issuance of this
Joint Order, the Committee shall meet and craft its rules of procedure as may be
complementary to the respective rules of DOJ and Comelec, and submit the same to the
Secretary of Justice and the Comelec En Banc for approval within five (5) days from such
initial meeting.

11
Rollo (G.R. No. 199118), pp. 58-143.

12
Id. at 124.

Michael C. Abas; Col. Reuben Basiao; John Doe Alias Major Joey Leaban; John Doe
13

alias Capt. Peter Reyes; Atty. Jaime Paz; Atty. Alberto Agra; Romy Dayday; Jeremy
Javier; Atty. Lilian A. Suan-Radam and Atty. Yogie G. Martirizar.
 Gloria Macapagal Arroyo; Datu Andal Ampatuan, Sr.; Lintang H. Bedol; Norie K. Unas;
14

John Doe alias Butch; Benjamin Abalos, [Sr.]; Nicodemo Ferrer; Estelita B. Orbase; Elisa
A. Gasmin; Elsa Z. Atinen;. Saliao S. Amba; Magsaysay B. Mohamad; Salonga K.
Adzela; Ragah D. Ayunan; Susan U. Cabanban; Russam H. Mabang; Asuncion Corazon
P. Reniedo; Nena A. Alid;. Ma. Susan L. Albano; Rohaida T. Khalid; Araw M. Cao;
Jeehan S. Nur; Alice A. Lim; Norijean P. Hangkal; Christina Roan M. Dalope; Maceda L.
Abo

15
Rollo (G.R. No. 199118), pp. 132-134.

Former First Gentleman Miguel Arroyo; Bong Serrano; Salonga K. Edzela; Election
16

Assistant Gani Maliga; Members of the SPBOC of Maguindanao Atty. Emilio Santos,
Atty. Manuel Lucero and Atty. Dinah Valencia; PES Faisal Tanjili; RED for Region XI
Remlani Tambuang; RED for ARMM Ray Sumalipao; Boboy Magbutay from the Visayas;
and certain Pobe from the Caraga Region.

17
Rollo (G.R. No. 199118), p. 137.

18
Rollo (G.R. No. 199085), pp. 163-194.

Bong Serrano; Gabby Claudio; Nicodemo Ferrer; Michael C. Abas; Ben Basiao; John
19

Oliver Leaban; Peter Reyes; Jaime Paz; Alberto Agra; Andrei Bon Tagum; Romy
Dayday; Jeremy Javier.

20
Rollo (G.R. No. 199118), p. 316.

21
Id. at 17.

22
Rollo (G.R. No. 199082), p. 21.

23
Refers to the Joint Committee and Fact-Finding Team.

24
Rollo (G.R. No. 199082), pp. 158-161.

25
Rollo (G.R. No. 199118), pp. 250-259.

26
Id. at 254.

27
Id. at 257.

28
Rollo (G.R. No. 199085), pp. 302-306.

29
Rollo (G.R. No. 199118), pp. 260-264.

30
Id. at 224.

31
Id. at 319.

32
Id. at 265-273.

33
Id. at 271-272.

34
Id. at 321.
35
Id. at 226.

36
Id. at 274-280.

37
Id. at 439-451.

38
Rollo (G.R. No. 199082), pp. 21-23.

39
Rollo (G.R. No. 199085), pp. 23-24.

40
Rollo (G.R. No. 199118), pp. 18-19.

41
Id. at 281-282.

42
Id. at 291-292.

43
Id. at 576-577.

44
Id. at 326-327.

45
Id. at 238.

46
Id. at 330.

47
Id. at 331.

48
Id. at 333.

49
Id. at 335.

50
Mattel, Inc. v. Francisco, G.R. No. 166886, July 30, 2008, 560 SCRA 504, 514.

51
Id.

Garayblas v. Atienza, Jr., G.R. No. 149493, June 22, 2006, 492 SCRA 202, 216; See:
52

Tantoy, Sr. v. Abrogar, G.R. No. 156128, May 9, 2005, 458 SCRA 301, 305.

53
Garayblas v. Atienza, Jr., supra, at 216-217.

54
268 Phil. 235 (1990).

55
Id. at 241.

56
G.R. No. 113630, May 5, 1994, 232 SCRA 192.

Bagabuyo v. Commission on Elections, G.R. No. 176970, December 8, 2008, 573

57

SCRA 290, 296.

58
Id.

Rollo (G.R. No. 199082), p. 6; rollo (G.R. No. 199085), p. 5; rollo (G.R. No. 199118), p.
59

9.
 Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No. 149719, June
60

21, 2007, 525 SCRA 198, 206.

61
Chua v. Ang, G.R. No. 156164, September 4, 2009, 598 SCRA 229, 237-238.

Barangay Association for National Advancement and Transparency (BANAT) Party-List

62

v. Commission on Elections, G.R. No. 177508, August 7, 2009, 595 SCRA 477, 493-494.

Baytan v. Comelec, 444 Phil. 812, 817-818 (2003); Pimentel, Jr. v. Comelec, 352 Phil.
63

424, 439 (1998).

Diño v. Olivarez, G.R. No. 170447, December 4, 2009, 607 SCRA 251, 261; Barangay
64

Association for National Advancement and Transparency (BANAT) Party-List v.

Commission on Elections, supra note 62, at 495-496; Commission on Elections v.
Español, G.R. Nos. 149164-73, December 10, 2003, 417 SCRA 554, 565.

65
Section 2. Continuing Delegation of Authority to Other Prosecution Arms of the
Government. – The Chief State Prosecutor, all Provincial and City Fiscals, and/or their
respective assistants are hereby given continuing authority, as deputies of the
Commission, to conduct preliminary investigation of complaints involving election
offenses under the election laws which may be filed directly with them, or which may be
indorsed to them by the Commission or its duly authorized representatives and to
prosecute the same. Such authority may be revoked or withdrawn anytime by the
Commission whenever in its judgment such revocation or withdrawal is necessary to
protect the integrity of the Commission, promote the common good, or when it believes
that successful prosecution of the case can be done by the Commission.

66
Commission on Elections v. Español, supra note 64, at 565.

67
Id.

68
Id. at 565-566.

69
G.R. Nos. 83938-40, November 6, 1989, 179 SCRA 190.

People v. Basilia, supra, cited in Barangay Association for National Advancement and
70

Transparency (BANAT) Party-List v. Commission on Elections, supra note 62, at 496.

An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission
71

on Elections to Use an Automated Election System in the May 11, 1998 National or Local
Elections and in Subsequent National and Local Electoral Exercises, to Encourage
Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the purpose
Batas Pambansa Blg. 881, As Amended, Republic Act No. 7166 and Other Related
Election Laws, Providing Funds Therefor and for Other Purposes."

72
Emphasis supplied.

73
Rollo (G.R. No. 199118), pp. 49-50.

74
Emphasis supplied.

75
G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA 78.

76
Id. at 166-167.
77
Creating the Philippine Truth Commission.

78
Santos v. People, G.R. No. 173176, August 26, 2008, 563 SCRA 341, 369.

Dimayuga v. Office of the Ombudsman, G.R. No. 129099, July 20, 2006, 495 SCRA
79

461, 469.

80
1987 Constitution, Article IX (C), Section 2 (l).

81
1987 Constitution, Article IX (C), Section 2 (4).

82
1993 Comelec Rules of Procedure, Sec. 3.

83
Cruz, Jr. v. People, G.R. No. 110436, June 27, 1994, 233 SCRA 439, 449.

84
Id.

85
Id. at 450, citing Cojuangco, Jr. v. PCGG, et al., supra note 54.

86
G.R. Nos. 170270-72, June 1, 2007, 523 SCRA 318.

Id. at 345, citing Tatad v. Sandiganbayan, G.R. No. L-72335-39, March 21, 1998, 159
87

SCRA 70.

Santos-Concio v. Department of Justice, G.R. No. 175057, January 29, 2008, 543
88

SCRA 70, 90.

Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459,

89

February 15, 2011, 643 SCRA 198, 234.

90
Santos-Concio v. Department of Justice, supra note 88.

91
Section 1, Chapter I, Title III, Book IV of the Administrative Code of 1987.

92
Section 3 (2), Chapter 1, Title III, Book IV, Administrative Code of 1987.

93
Rules of Criminal Procedure, Rule 112, Section 1.

94
R.A. 9369, Sec. 43.

Section 1. The Constitutional Commissions, which shall be independent, are the Civil
95

Service Commission, the Commission on Elections, and the Commission on Audit.

96
Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192 SCRA 358, 360.

97
Gallardo v. Tabamo, Jr., G.R. No. 104848, January 29, 1993, 218 SCRA 253, 264.

98
Comelec Rules of Procedure, Rule 34.

Comelec Resolution No. 3467 "In the Matter of Requesting the Honorable Secretary of
99

Justice to Assign Prosecutors as Members of a Special Task Force to Assist the

Commission in the Investigation and Prosecution of Election Offenses in the May 14,
2001 National and Local Elections and reiterating the Continuing Deputation of
Prosecutors under Rule 34 of the Comelec Rules of Procedure"; Resolution No. 8733 "In
the Matter of Requesting the Honorable Secretary of Justice to Assign Prosecutors as
Members of a Special Task Force Created by the Commission to Conduct the
Investigation and Prosecution of Election Offenses in Connection with the May 10, 2010
National and Local Elections"; Resolution No. 9057 "In the Matter of Requesting the
Honorable Secretary of Justice to Assign Prosecutors as Members of a Special Task
Force to Assist the Commission in the Investigation and Prosecution of Election Offenses
in Connection with the October 25, 2010 Barangay and Sanguniang Kabataan Elections."
(Emphasis supplied.)

100
Supra note 62.

Bedol v. Commission on Elections, G.R. No. 179830, December 3, 2009, 606 SCRA
101

554, 569, citing Loong v. Commission on Elections, G.R. No. 133676, April 14, 1999, 305
SCRA 832.

102
Tolentino v. Comelec, G.R. No. 148334, January 21, 2004, 465 SCRA 385, 416.

103
Id., citing Pungutan v. Abubakar, 150 Phil. 1 (1972).

104
Department of Justice v. Hon. Liwag, 491 Phil. 270, 285 (2005).

105
Id. at 287.

106
Id.

107
Id. at 287-288.

108
230 Phil. 528 (1986).

109
Id. at 535.

110
G.R. No. 159747, April 13, 2004, 427 SCRA 46.

National Association of Electricity Consumers for Reforms (NASECORE) v. Energy

111

Regulatory Commission (ERC), G.R. No. 163935, August 16, 2006, 499 SCRA 103, 125.

Garcillano v. House of Representatives Committees on Public Information, Public

112

Order and Safety, National Defense and Security, Information and Communication
Technology, and Suffrage and Electoral Reforms, G.R. No. 170338, December 23, 2008,
575 SCRA 170, 190.

113
Rollo (G.R. No. 199118), pp. 222-249.

114
Id. at 226-227.

115
Id. at 472-488.

Philippine Radiant Products, Inc. v. Metropolitan Bank & Trust Company, Inc., 513 Phil.
116

414, 428 (2005).

117
Huibonhoa v. Concepcion, G.R. No. 153785, August 3, 2006, 497 SCRA 562, 569-570.

118
See: Disini v. Sandiganbayan, G.R. No. 175730, July 5, 2010, 623 SCRA 354, 377.
119
G.R. Nos. 156399-400, June 27, 2008, 556 SCRA 73.

120
Id. at 93-94.

121
Ladlad v. Velasco, supra note 86, at 344.

122
Estandarte v. People, G.R. Nos. 156851-55, February 18, 2008, 546 SCRA 130, 144.

123
Rollo (G.R. No. 199118), pp. 250-259.

124
Id. at 251-253.

125
Id. at 255.

126
Emphasis supplied.

127
Emphasis supplied.

128
Rollo (G.R. No. 199085), p. 747.

129
Rollo (G.R. No. 199118), p. 262.

130
Rollo (G.R. No. 199085), p. 748.

131
Id. at 763.

132
Id. at 763-770.

133
PCGG v. Hon. Desierto, 445 Phil. 154, 192 (2003).

134
Id. at 193; Raro v. Sandiganbayan, 390 Phil. 917, 945 (2000).

135
PCGG v. Hon. Desierto, supra note 133, at 193.

136
Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008, 561 SCRA 135, 146.

137
Id. ; Yulo v. People, G.R. No. 142762, March 4, 2005, 452 SCRA 705, 710.

138
Uy v. Adriano, G.R. No. 159098, October 27, 2006, 505 SCRA 625, 647.

Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000, 335 SCRA 581; Socrates v.
139

Sandiganbayan, G.R. Nos. 116259-60, February 20, 1996, 253 SCRA 773, 792; Pilapil v.
Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349, 355, citing Doromal v.
Sandiganbayan, G.R. No. 85468, September 7, 1989, 177 SCRA 354.

140
San Agustin v. People, G.R. No. 158211, August 31, 2004, 437 SCRA 392, 401.

Raro v. Sandiganbayan, supra note 139; Socrates v. Sandiganbayan, supra note 139;
141

Pilapil v. Sandiganbayan, supra note 139.

142
Supra note 54.

143
Supra note 56.
 144
Memorandum of GMA, rollo (G.R. No. 199118), pp. 74-84.

Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 606, citing
145

Santos-Concio v. Department of Justice, G.R. No. 175057, January 29, 2008, 543 SCRA
70.

146
Id.

147
Commissioners Elias R. Yusoph and Christian Robert S. Lim.

Dipatuan v. Mangotara, A.M. No. RTJ-09-2190, April 23, 2010, 619 SCRA 48, 53;
148

Argana v. Republic of the Philippines, 485 Phil 565, 591-592 (2004).

Kilosbayan Foundation v. Janolo, Jr., G.R. No. 180543, July 27, 2010, 625 SCRA 684,
149

697-698.

Philippine Commercial International Bank v. Dy Hong Pi, G.R. No. 171137, June 5,
150

2009, 588 SCRA 612, 632.

151
Nos. L-68379-81, September 22, 1986, 144 SCRA 194.

Javier v. Commission on Elections, Nos. L-68379-81, September 22, 1986, 144 SCRA
152

194, 196.

153
Id. at 199.

154
Id. at 207.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING AND DISSENTING OPINION

CARPIO, J.:

I concur with the ponencia in its conclusion that (l) there is no violation of the Due Process and
Equal Protection Clause in the creation, composition, and proceedings of the Joint Department of
Justice ( DO.I) -Commission on Elections (COMELEC) Preliminary Investigation Committee
(Committee) and the Fact--Finding Team; (2) petitiou0r Gloria Macapagal-Arroyo (Macapagal-
Arroyo) in G.R. No. 199118 was not denied opportunity to be heard in the course of the
Committee's preliminary investigation proceedings; and (3) the preliminary investigation against
petitioners, which followed Rule 112 of the Rules on Criminal Procedure and Rule 34 of the
COMELEC Rules of Procedure, is valid.

Petitioners' attack against the impartiality of the Committee and the Fact-Finding Team because
of their composition and source of funding is negated by (1) the express statutory authority fiJr
the DOJ and the COMELEC to conduct concurrently preliminary investigations on election-
related offenses, (2) the separate funding for the Committee and Fact-Finding Team's personnel,
and (3) the failure of petitioners to rebut the presumption of regularity in the performance of
official functions. Similarly, the equal protection attack against Joint Order 001-2011 for its
alleged underinclusivity fails as jurisprudence is clear that underinclusivity of classification, by
itself, does not offend the Equal Protection Clause.1

Nor is there merit in petitioner Macapagal-Arroyo’s claim that the Committee’s denial of her
request for time to file her counter-affidavit and for copies of documents relating to the complaint
of Aquilino Pimentel III (Pimentel) and the Fact-Finding’s partial investigation report robbed her of
opportunity to be heard. Petitioner Macapagal-Arroyo was furnished with all the documents the
Committee had in its possession. Further, the documents relating to Pimentel’s complaint,2 all
based on an election protest he filed with the Senate Electoral Tribunal,3 are not indispensable
for petitioner Macapagal-Arroyo to prepare her counter-affidavit to answer the charge that she
acted as principal by conspiracy, not by direct participation, to commit electoral sabotage in
Maguindanao in the 2007 elections.

I am, however, unable to join the ponencia in its conclusion that the rules of procedure adopted
by the Committee (Committee Rules) must be published.

Section 7 of the Joint Order provides that the "Committee shall meet and craft its rules of
procedure as may be complementary to the respective rules of DOJ and COMELEC x x x."
Section 2 of the Committee Rules provides that the "preliminary investigation shall be conducted
in the following manner as may be complementary to Rule 112 of the Rules on Criminal
Procedure and Rule 34 of the COMELEC Rules of Procedure." This means that the Committee
Rules will apply only if they complement Rule 112 or Rule 34. If the Committee Rules do not
complement Rule 112 or Rule 34 because the Committee Rules conflict with Rule 112 or Rule
34, the Committee Rules will not apply and what will apply will either be Rule 112 or Rule 34.
Clearly, the Committee Rules do not amend or revoke Rule 112 or Rule 34, but only complement
Rule 112 or Rule 34 if possible. "Complementary" means an addition so as to complete or
perfect.4 The Committee Rules apply only to the extent that they "may be complementary to"
Rule 112 or Rule 34. In short, despite the adoption of the Committee Rules, Rule 112 of the
Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure indisputably
remain in full force and effect.

Assuming, for the sake of argument, that the Committee Rules amend Rule 112 and Rule 34, the
lack of publication of the Committee Rules renders them void, as correctly claimed by petitioners.
In such a case, Rule 112 and Rule 34 remain in full force and effect unaffected by the void
Committee Rules. The preliminary investigation in the present case was conducted in
accordance with Rule 112 and Rule 34. Petitioners do not claim that any of their rights under
Rule 112 or Rule 34 was violated because of the adoption of the Committee Rules. In short,
petitioners cannot impugn the validity of the preliminary investigation because of the adoption of
the Committee Rules, whether the adoption was void or not.

As shown in the matrix drawn by public respondents in their Comment,5 of the ten paragraphs in
Section 2 (Procedure) of the Committee Rules, only one paragraph is not found in Rule 112 of
the Rules on Criminal Procedure and this relates to an internal procedure on the treatment of
referrals by other government agencies or the Fact-Finding Team to the Committee.6 In Honasan
II v. Panel of Prosecutors of the DOJ,7 the Court quoted and adopted the following argument of
the Ombudsman:

OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the
Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ
and of the Office of the Ombudsman in the conduct of preliminary investigation.

OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in
general.

Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001
has to be published. (Emphasis supplied)
In addition, Section 3 of the Committee Rules (Resolution of the Committee) is a substantial
reproduction of the first paragraph of Section 4 of Rule 112, save for language replacing
"investigating prosecutor" with "Committee." Section 4 of the Committee Rules (Approval of
Resolution), while not appearing in Rule 112, is an internal automatic review mechanism (for the
COMELEC en banc to review the Committee’s findings) not affecting petitioners’ rights.8 Thus,
save for ancillary internal rules, the Committee Rules merely reiterate the procedure embodied in
Rule 112.

Nevertheless, the ponencia finds publication (and filing of the Committee Rules with the U.P. Law
Center9) "necessary" because three provisions of the Committee Rules "either restrict the rights
or provide remedies to the affected parties," namely:

(1) Section 1 [which] provides that "the Joint Committee will no longer entertain complaints from
the public as soon as the Fact-Finding Team submits its final Report, except for such complaints
involving offenses mentioned in the Fact-Finding Team’s Final Report"; (2) Section

2 which states that the "Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section
5 which provides that a Motion for Reconsideration may be availed of by the aggrieved parties
against the Joint Committee’s Resolution.10

None of these provisions justify placing the Committee Rules within the ambit of Tañada v.
Tuvera.11

Section 1 of the Committee Rules allows the Committee, after the submission by the Fact-
Finding Team of its Final Report, to entertain complaints mentioned in the Final Report and
disallows the Committee to entertain complaints unrelated to the offenses mentioned in the Final
Report. This is still part of the fact-finding stage and the Committee has the discretion to require
the Fact-Finding Team to take into account new complaints relating to offenses mentioned in the
Final Report. At this stage, there is still no preliminary investigation. Section 1 refers solely to the
fact-finding stage, not the preliminary investigation. Thus, Section 1 cannot in any way amend,
revoke or even clarify Rule 112 or Rule 34 which governs the preliminary investigation and not
the fact-finding stage. Section 1 is merely an internal rule governing the fact-finding stage. To
repeat, Section 1 does not have the force and effect of law that affects and binds the public in
relation to the preliminary investigation. In short, there is no need to publish Section 1 because it
deals solely with fact-finding, not with the preliminary investigation.

In barring acceptance of new complaints after the submission of the Fact-Finding Team’s Final
Report to the Committee, save for complaints on offenses covered in the Final Report, Section 1
merely states a commonsensical rule founded on logic. If the Final Report is with the Committee,
it makes no sense to re-open the investigation for the Fact-Finding Team to investigate offenses
wholly unrelated to the Final Report. For such new offenses, the Fact-Finding Team will have to
open a new investigation. On the other hand, it makes eminent sense for the Fact-Finding Team
to re-open investigation (and thus revise its Final Report) if the new complaints "involve offenses
mentioned in the Fact-Finding Team’s Final Report," allowing the Fact-Finding Team to submit
as thorough and comprehensive a Report as possible on the offenses subject of the Final
Report. Far from "restricting the rights" of the "affected parties," Section 1 favors the petitioners
by letting the Fact-Finding Team parse as much evidence available, some of which may be
exculpatory, even after the

Final Report has been submitted to the Committee, provided they relate to offenses subject of
the Final Report.

On Section 2 and Section 5 of the Committee Rules, these provisions merely reiterate extant
rules found in the Rules of Court and relevant administrative rules, duly published and filed with
the U.P. Law Center. Thus, Section 2’s proscription against the filing of a motion to dismiss is
already provided in Section 3(c) of Rule 112 which states that "the respondent shall not be
allowed to file a motion to dismiss in lieu of a counter-affidavit."12 Similarly, the right to seek
reconsideration from an adverse Committee Resolution under Section 5, again favoring
petitioners, has long been recognized and practiced in the preliminary investigations undertaken
by the DOJ.13 DOJ Order No. 223, dated 1 August 1993, as amended by DOJ Department
Circular No. 70, dated 1 September 2000, grants to the aggrieved party the right to file "one
motion for reconsideration" and reckons the period for the filing of appeal to the DOJ Secretary
from the receipt of the order denying reconsideration.14

Tañada v. Tuvera requires publication of administrative rules that have the force and effect of law
and the Revised Administrative Code requires the filing of such rules with the U.P. Law Center as
facets of the constitutional guarantee of procedural due process, to prevent surprise and
prejudice to the public who are legally presumed to know the law.15 As the Committee Rules
merely complement and even reiterate Rule 112 of the Rules on Criminal Procedure, I do not see
how their non-publication and non-filing caused surprise or prejudice to petitioners. Petitioners’
claim of denial of due process would carry persuasive weight if the Committee Rules amended,
superseded or revoked existing applicable procedural rules or contained original rules found
nowhere in the corpus of procedural rules of the COMELEC or in the Rules of Court, rendering
publication and filing imperative.16 Significantly, petitioner Macapagal-Arroyo encountered no
trouble in availing of Rule 112 to file a motion with the Committee praying for several reliefs.17

Lastly, the complementary nature of the Committee Rules necessarily means that the
proceedings of the Committee would have continued and no prejudice would have been caused
to petitioners even if the Committee Rules were non-existent. The procedure provided in Rule
112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure would
have ipso facto applied since the Committee Rules merely reiterate Rule 112 and Rule 34. The
ponencia concedes as much when it refused to invalidate the Committee’s proceedings,
observing that "the preliminary investigation was conducted by the Joint Committee pursuant to
the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993
COMELEC Rules of Procedure."18

Accordingly, I vote to DISMISS the petitions.

ANTONIO T. CARPIO
Associate Justice

Footnotes

1See e.g. Quinto v. Commission on Elections, G.R. No. 189698, 22 February 2010, 613
SCRA 385 (reversing the earlier ruling of the Court striking down a law for its
underinclusivity).

2 Numerous election forms and 201,855 ballots from 1,078 precincts in Maguindanao.

3 SET Case No. 001-07 (Aquilino Pimentel III v. Juan Miguel F. Zubiri).

4 Merriam-Webster Dictionary, Version 3 (2003).

5 Consolidated Comment, pp. 78-82.

6Section 2(a), second paragraph which provides: "The Committee shall treat a referral
made by a government agency authorized to enforce the law or the referral, report or
recommendation of the Fact-Finding Team for the prosecution of an offense as a
complaint to initiate preliminary investigation. In any of these instances, the referral,
report or recommendation must be supported by affidavits, documentary, and such other
evidence to establish probable cause."

7 G.R. No. 159747, 13 April 2004, 427 SCRA 46.

8 The Committee Rules omit that portion of Section 3(b), Rule 112 which provides that
"[I]f the evidence is voluminous, the complainant may be required to specify those which
he intends to present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense." This, however, does not work
prejudice to petitioner Macapagal-Arroyo because she was furnished with all the
documents the Committee had in its possession relating to the two cases under
investigation.

9 Under Executive Order No. 292, Book VII, Chapter 2, Sections 3-4.

10 Decision, p. 37.

G.R. No. L-63915, 24 April 1985, 136 SCRA 27 (Decision); 29 December 1986, 146
11

SCRA 446 (Resolution).

12Section 3(c) provides in full: "Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the respondent shall submit his
counter-affidavit and that of his witnesses and other supporting documents relied upon
for his defense. The counter-affidavits shall be subscribed and sworn to and certified as
provided in paragraph (a) of this section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a
counter-affidavit." (Emphasis supplied)

13
See, e.g. Adamson v. Court of Appeals, G.R. No. 120935, 21 May 2009, 588 SCRA 27
(where the DOJ denied reconsideration of its Resolution for probable cause for violation
of several provisions of the National Internal Revenue Code); People v. Potot, 432 Phil.
1028 (2002) (where a provincial prosecutor denied reconsideration to a finding of
probable cause for Homicide.)

14Section 3 of DOJ Department Circular No. 70 provides in full: "Period to Appeal. – The
appeal shall be taken within fifteen (15) days from receipt of the resolution or of the
denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen
(15) days from receipt of the assailed resolution. Only one motion for reconsideration
shall be allowed." This amends Section 2 of DOJ Order No. 223 which provides: "When
to appeal. – The appeal must be filed within a period of fifteen (15) days from receipt of
the questioned resolution by the party or his counsel.

The period shall be interrupted only by the filing of a motion for reconsideration
within ten (10) days from receipt of the resolution and shall continue to run from
the time the resolution denying the motion shall have been received by the
movant or his counsel."

15 Civil Code, Article 3.

16See e.g. Republic v. Express Telecommunications, Inc., G.R. No. 147096, 15 January
2002, 373 SCRA 316; GMA Network, Inc. v. MTRCB, G.R. No. 148579, 5 February 2007,
514 SCRA 191.
 17On 8 November 2011, petitioner Macapagal-Arroyo filed an "Omnibus Motion Ad
Cautelam" requesting copies of documents relating to DOJ-COMELEC Case No. 001-
2011 and DOJ-COMELEC Case No. 002-2011. In her motion, petitioner invoked Section
3, Rule 112 of the Rules on Criminal Procedure (Annex "A," Supplemental Petition, G.R.
No. 199118).

18 Decision, pp. 38-39. Emphasis supplied.

The Lawphil Project - Arellano Law Foundation

DISSENTING AND CONCURRING OPINION

BRION, J.:

The Boiling Frog

Place a frog in boiling water, and it will jump out to save itself; But place it in cold water and
slowly apply heat, and the frog will boil to death.1

I open this Dissenting and Concurring Opinion with the tale of the metaphorical "boiling frog" to
warn the Court and the readers about the deeper implications of this case – a case that involves
a major breach of the Philippine Constitution where the frog stands for the independence of the
Commission on Elections (COMELEC).

As one American article on the metaphor puts it,2 "If people become acclimated to some policy or
state of affairs over a sufficient period of time, they come to accept the policy or state of affairs as
normal. . .The Boiling Frog Syndrome explains how the American public has come to accept
breaches of Constitutional government that would have provoked armed resistance a hundred
years ago. The public has grown accustomed to these breaches, and to the federal government
conducting myriad activities that are nowhere authorized by the Constitution and accepts them
as normal."3

In the Philippine setting, the various Philippine Constitutions have expressly guaranteed
independence to the Judiciary, to the Office of the Ombudsman, and to the Constitutional
Commissions, one of which is the COMELEC. The independence is mainly against the intrusion
of the Executive,4 the government department that implements the laws passed by the
Legislature and that administered and controlled the conduct of elections in the past.5 The
Judiciary has so far fully and zealously guarded the role of these institutions and their
independence in the constitutional scheme, but the nation cannot rest on this record and must
ever be vigilant.

While gross and patent violations of the guarantee of independence will not sit well with, and will
not be accepted by, the people, particularly in this age of information and awareness, ways other
than the gross and the patent, exist to subvert the constitutional guarantee of independence. The
way is through small, gradual and incremental changes – boiling the frog –that people will not
notice, but which, over time, will slowly and surely result in the subjugation of the independent
institutions that the framers of the Constitution established to ensure balance and stability in a
democratic state where the separation of powers among the three branches of government, and
checks and balances, are the dominant rules.
This is what the present case is all about – a subtle change that people will hardly notice except
upon close and critical study, and until they look around them for other subtle changes in other
areas of governance, all of them put into place with the best professed intentions but tending to
subvert the structures that the framers of the Constitution very carefully and thoughtfully
established. Unless utmost vigilance is observed and subtle subverting changes are immediately
resisted, the people may never fully know how their cherished democratic institutions will come to
naught; through slow and gradual weakening, these democratic institutions – like the frog – will
end up dead. Sadly, this process of gradualism is what the Court allows in the present case.

It is in this context that I filed this Dissent from the majority’s conclusion that COMELEC
Resolution No. 9266 and Joint Order No. 001-2011 are valid and constitutional, although I
ultimately concur with the majority’s resulting conclusion, based on non-constitutional grounds,
that the petitions should be dismissed. I maintain that these assailed issuances are fatally
defective and should be struck down for violating the constitutionally guaranteed independence
of COMELEC.

In its rulings, the majority held that the petitioners failed to establish any constitutional or legal
impediment to the creation of the Joint Department of Justice (DOJ)-COMELEC Preliminary
Investigation Committee (Joint Committee) and the Fact-Finding Team. It likewise held that the
petitioners’ issues relating to equal protection, due process, separation of powers, requirement of
publication, and bias on the part of COMELEC Chairman Sixto Brillantes are unmeritorious.6 The
fountainhead of all these issues, however, is the validity of the creation of, and the exercise of
their defined functions by, the DOJ-COMELEC committees; the issues the majority ruled upon all
spring from the validity of this creation. On this point, I completely disagree with the majority and
its ruling that the COMELEC did not abdicate its functions and independence in its joint efforts
with the DOJ.

I submit that in the Resolutions creating the committees and providing for the exercise of their
power to conduct fact-finding and preliminary investigation in the present case, the COMELEC
unlawfully ceded its decisional independence by sharing it with the DOJ – an agency under the
supervision, control and influence of the President of the Philippines.

The discussions below fully explain the reasons for my conclusion.

I. The Independence of the COMELEC

a. Historical Roots

The establishment of the COMELEC traces its roots to an amendment of the 1935 Constitution in
1940, prompted by dissatisfaction with the manner elections were conducted then in the
country.7 Prior to this development, the supervision of elections was previously undertaken by the
Department of Interior, pursuant to Section 2, Commonwealth Act No. 357 of the First National
Assembly. The proposal to amend the Constitution was subsequently embodied in Resolution
No. 73, Article III of the Second National Assembly, adopted on April 11, 1940, and was later
approved on December 2, 1940 as Article X of the 1935 Constitution:8

The administrative control of elections now exercised by the Secretary of Interior is what is
sought to be transferred to the Commission on Elections by the proposed constitutional
amendment now under discussion. The courts and the existing Electoral Commission (electoral
tribunal) retain their original powers over contested elections.9

This development was described as "a landmark event in Philippine political history"10 that put in
place a "novel electoral device designed to have the entire charge of the electoral process of the
nation."11 A legal commentator noted:
The proposition was to entrust the conduct of our elections to an independent entity whose sole
work is to administer and enforce the laws on elections, protect the purity of the ballot and
safeguard the free exercise of the right of suffrage. The Commission on Elections was really
existing before 1940 as a creation of a statute passed by the National Assembly; but it
necessitated a constitutional amendment to place it outside the influence of political parties and
the control of the legislative, executive and judicial departments of the government. It was
intended to be an independent administrative tribunal, co-equal with other departments of the
government in respect to the powers vested in it.12 [emphasis and underscoring supplied]

Nine years later, the COMELEC’s independence was tested in Nacionalista Party v.
Bautista,13 where the Court dealt with the question of whether the designation, by then President
Elpidio Quirino, of Solicitor General Felix Angelo Bautista as Acting Member of the COMELEC —
pending the appointment of a permanent member to fill the vacancy caused by the retirement of
Commissioner Francisco Enage — was unlawful and unconstitutional. The Court ruled that the
designation was repugnant to the Constitution which guarantees the independence of the
COMELEC, and said:

Under the Constitution, the Commission on Elections is an independent body or institution

(Article X of the Constitution), just as the General Auditing Office is an independent office (Article
XI of the Constitution). Whatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be independent from the
other departments of the Government. xxx

By the very nature of their functions, the members of the Commission on Elections must be
independent. They must be made to feel that they are secured in the tenure of their office and
entitled to fixed emoluments during their incumbency (economic security), so as to make them
impartial in the performance of their functions their powers and duties. They are not allowed to do
certain things, such as to engage in the practice of a profession; to intervene, directly or
indirectly, in the management or control of any private enterprise; or to be financially interested in
any contract with the Government or any subdivision or instrumentality thereof (sec. 3, Article X,
of the Constitution). These safeguards are all conducive or tend to create or bring about a
condition or state of mind that will lead the members of the Commission to perform with
impartiality their great and important task and functions. That independence and impartiality may
be shaken and destroyed by a designation of a person or officer to act temporarily in the

Commission on Elections. And, although Commonwealth Act No. 588 provides that such
temporary designation "shall in no case continue beyond the date of the adjournment of the
regular session of the National Assembly (Congress) following such designation," still such limit
to the designation does not remove the cause for the impairment of the independence of one
designated in a temporary capacity to the Commission on Elections. It would be more in keeping
with the intent, purpose and aim of the framers of the Constitution to appoint a permanent
Commissioner than to designate one to act temporarily. Moreover, the permanent office of the
respondent may not, from the strict legal point of view, be incompatible with the temporary one to
which he has been designated, tested by the nature and character of the functions he has to
perform in both offices, but in a broad sense there is an incompatibility, because his duties and
functions as Solicitor General require that all his time be devoted to their efficient performance.
Nothing short of that is required and expected of him.14 [emphasis ours]

Thus, as early as 1949, this Court has started to guard with zeal the COMELEC’s independence,
never losing sight of the crucial reality that its "independence is the principal justification for its
creation."15 The people’s protectionist policy towards the COMELEC has likewise never since
wavered and, in fact, has prevailed even after two amendments of our Constitution in 1973 and
1987 – an enduring policy highlighted by then Associate Justice Reynato Puno in his concurring
opinion in Atty. Macalintal v. COMELEC:16
The Commission on Elections (COMELEC) is a constitutional body exclusively charged with the
enforcement and administration of "all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall," and is invested with the power to decide all
questions affecting elections save those involving the right to vote.

Given its important role in preserving the sanctity of the right of suffrage, the COMELEC was
purposely constituted as a body separate from the executive, legislative, and judicial branches of
government. Originally, the power to enforce our election laws was vested with the President and
exercised through the Department of the Interior. According to Dean Sinco, however, the view
ultimately emerged that an independent body could better protect the right of suffrage of our
people. Hence, the enforcement of our election laws, while an executive power, was transferred
to the COMELEC.

The shift to a modified parliamentary system with the adoption of the 1973 Constitution did not
alter the character of COMELEC as an independent body. Indeed, a "definite tendency to
enhance and invigorate the role of the Commission on Elections as the independent
constitutional body charged with the safeguarding of free, peaceful and honest elections" has
been observed. The 1973 Constitution broadened the power of the COMELEC by making it the
sole judge of all election contests relating to the election, returns and qualifications of members
of the national legislature and elective provincial and city officials. Thus, the COMELEC was
given judicial power aside from its traditional administrative and executive functions.

The trend towards strengthening the COMELEC continued with the 1987 Constitution. Today, the
COMELEC enforces and administers all laws and regulations relative to the conduct of elections,
plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial and
city elective officials are under its exclusive original jurisdiction while all contests involving
elective municipal and barangay officials are under its appellate jurisdiction.17 (citations omitted)

At present, the 1987 Constitution (as has been the case since the amendment of the 1935
Constitution) now provides that the COMELEC, like all other Constitutional Commissions, shall
be independent. It provides that:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit. [emphasis ours]

The unbending doctrine laid down by the Court in Nationalista Party was reiterated in Brillantes,
Jr. v. Yorac,18 a 1990 case where no less than the present respondent COMELEC Chairman
Brillantes challenged then President Corazon C. Aquino’s designation of Associate
Commissioner

Haydee Yorac as Acting Chairman of the COMELEC, in place of Chairman Hilario Davide.

In ruling that the Constitutional Commissions, labeled as "independent" under the Constitution,
are not under the control of the President even if they discharge functions that are executive in
nature, the Court again vigorously denied "Presidential interference" in these constitutional
bodies and held:

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions
as "independent." Although essentially executive in nature, they are not under the control of the
President of the Philippines in the discharge of their respective functions. Each of these
Commissions conducts its own proceedings under the applicable laws and its own rules and in
the exercise of its own discretion. Its decisions, orders and rulings are subject only to review
on certiorari by this Court as provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that
discretion. That discretion cannot be exercised for it, even with its consent, by the President of
the Philippines.

xxxx

The lack of a statutory rule covering the situation at bar is no justification for the President of the
Philippines to fill the void by extending the temporary designation in favor of the respondent. This
is still a government of laws and not of men. The problem allegedly sought to be corrected, if it
existed at all, did not call for presidential action. The situation could have been handled by the
members of the Commission on Elections themselves without the participation of the President,
however well-meaning.

xxx

The Court has not the slightest doubt that the President of the Philippines was moved only by the
best of motives when she issued the challenged designation. But while conceding her goodwill,
we cannot sustain her act because it conflicts with the Constitution. Hence, even as this Court
revoked the designation in the Bautista case, so too must it annul the designation in the case at
bar.19

In 2003, Atty. Macalintal v. Commission on Elections20 provided yet another opportunity for the
Court to demonstrate how it ardently guards the independence of the COMELEC against
unwarranted intrusions.

This time, the stakes were higher as Mme. Justice Austria-Martinez, writing for the majority,
remarked: "Under xxx the situation, the Court is left with no option but to withdraw xxx its usual
reticence in declaring a provision of law unconstitutional."21 The Court ruled that Congress, a co-
equal branch of government, had no power to review the rules promulgated by the COMELEC for
the implementation of Republic Act (RA) No. 9189 or The Overseas Absentee Voting Act of
2003, since it "tramples upon the constitutional mandate of independence of the
COMELEC."22 Thus, the Court invalidated Section 25(2) of RA No. 9189 and held:

The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."

Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an
independent COMELEC, the Court has held that "whatever may be the nature of the functions of
the Commission on Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government." In an earlier case, the Court
elucidated:

The Commission on Elections is a constitutional body. It is intended to play a distinct and

important part in our scheme of government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should be allowed considerable
latitude in devising means and methods that will ensure the accomplishment of the great
objective for which it was created – free, orderly and honest elections. We may not agree fully
with its choice of means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. Politics is a practical matter, and political questions
must be dealt with realistically – not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political strategists, and its
knowledge derived from actual experience in dealing with political controversies, is in a peculiarly
advantageous position to decide complex political questions. (italics supplied)
The Court has no general powers of supervision over COMELEC which is an independent body
"except those specifically granted by the Constitution," that is, to review its decisions, orders and
rulings. In the same vein, it is not correct to hold that because of its recognized extensive
legislative power to enact election laws, Congress may intrude into the independence of the
COMELEC by exercising supervisory powers over its rule-making authority.

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the
necessary rules and regulations to effectively implement the provisions of this Act within sixty
days from the effectivity of this Act." This provision of law follows the usual procedure in drafting
rules and regulations to implement a law – the legislature grants an administrative agency the
authority to craft the rules and regulations implementing the law it has enacted, in recognition of
the administrative expertise of that agency in its particular field of operation. Once a law is
enacted and approved, the legislative function is deemed accomplished and complete. The
legislative function may spring back to Congress relative to the same law only if that body deems
it proper to review, amend and revise the law, but certainly not to approve, review, revise and
amend the IRR of the COMELEC.

By vesting itself with the powers to approve, review, amend, and revise the IRR for The
Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional
authority. Congress trampled upon the constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual
reticence in declaring a provision of law unconstitutional.

The second sentence of the first paragraph of Section 19 stating that "the Implementing Rules
and Regulations shall be submitted to the Joint Congressional Oversight Committee created by
virtue of this Act for prior approval," and the second sentence of the second paragraph of

Section 25 stating that "[i]t shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission," whereby Congress, in both provisions, arrogates
unto itself a function not specifically vested by the Constitution, should be stricken out of the
subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on the
independence of the COMELEC.

Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the
first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not
more than three countries for the May, 2004 elections; and the phrase, "only upon review and
approval of the Joint Congressional Oversight Committee" found in the second paragraph of the
same section are unconstitutional as they require review and approval of voting by mail in any
country after the 2004 elections. Congress may not confer upon itself the authority to approve or
disapprove the countries wherein voting by mail shall be allowed, as determined by the
COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. Otherwise,
Congress would overstep the bounds of its constitutional mandate and intrude into

the independence of the COMELEC.23 [citations omitted, emphases ours]

Thus, from the perspective of history, any ruling from this Court – as the ponencia now makes —
allowing the COMELEC to share its decisional independence with the Executive would be a first
as well as a major retrogressive jurisprudential development. It is a turning back of the
jurisprudential clock that started ticking in favor of the COMELEC’s independence in 1940 or 72
years ago.

b. The COMELEC’s Power to Investigate and Prosecute Election Offenses

At the core of the present controversy is the COMELEC’s exercise of its power to investigate and
prosecute election offenses under Section 2, Article IX (C) of the 1987 Constitution. It states that
the COMELEC shall exercise the following power and function:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or
exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds, offences and malpractices.
[emphasis supplied]

In Barangay Association for National Advancement and Transparency (BANAT) Party-List v.

Commission on Elections,24 the Court traced the legislative history of the COMELEC’s power to
investigate and prosecute election offenses, and concluded that the grant of such power was not
exclusive:

Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to "investigate
and, where appropriate, prosecute cases of violations of election laws, including acts or
omissions constituting election frauds, offenses, and malpractices." This was an important
innovation introduced by the Constitution because this provision was not in the 1935 or 1973
Constitutions. The phrase "where appropriate" leaves to the legislature the power to determine
the kind of election offenses that the COMELEC shall prosecute exclusively or concurrently with
other prosecuting arms of the government.

The grant of the "exclusive power" to the COMELEC can be found in Section 265 of BP 881
Omnibus Election Code, which provides:

Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have
the exclusive power to conduct preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however, That in the event that the Commission
fails to act on any complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and
prosecution, if warranted. (Emphasis supplied)

This was also an innovation introduced by BP 881. The history of election laws shows that prior
to BP 881, no such "exclusive power" was ever bestowed on the COMELEC.

We also note that while Section 265 of BP 881 vests in the COMELEC the "exclusive power" to
conduct preliminary investigations and prosecute election offenses, it likewise authorizes the
COMELEC to avail itself of the assistance of other prosecuting arms of the government. In the
1993 COMELEC Rules of Procedure, the authority of the COMELEC was subsequently qualified
and explained. The 1993 COMELEC Rules of Procedure provides:

Rule 34 - Prosecution of Election Offenses

Sec. 1. Authority of the Commission to Prosecute Election Offenses. - The Commission shall
have the exclusive power to conduct preliminary investigation of all election offenses punishable
under the election laws and to prosecute the same, except as may otherwise be provided by
law.25 (citations omitted, emphases ours)

As outlined in that case, Section 265 of Batas Pambansa Blg. 881 (BP 881) of the Omnibus
Election Code granted the COMELEC the exclusive power to conduct preliminary investigations
and prosecute election offenses. Looking then at the practical limitations arising from such broad
grant of power, Congress also empowered the COMELEC to avail of the assistance of the
prosecuting arms of the government.

Under the 1993 COMELEC Rules of Procedure, the Chief State Prosecutor, all Provincial and
City Fiscals, and/or their respective assistants were given continuing authority, as deputies of the
COMELEC, to conduct preliminary investigation of complaints involving election offenses under
election laws that may be filed directly with them, or that may be indorsed to them by the
COMELEC or its duly authorized representatives and to prosecute the same.26
Under the same Rules, the Chief State Prosecutor, Provincial Fiscal or City Fiscal were
authorized to receive complaints for election offenses and after which the investigation may be
delegated to any of their assistants.27 After the investigation, the investigating officer shall issue
either a recommendation to dismiss the complaint or a resolution to file the case in the proper
courts; this recommendation, however, was subject to the approval by the Chief State
Prosecutor, Provincial or City Fiscal, and who shall also likewise approve the information
prepared and immediately cause its filing with the proper court.28 The Rule also provide that
resolution of the Chief State Prosecutor or the Provincial or City Fiscal, could be appealed with
the COMELEC within ten (10) days from receipt of the resolution, provided that the same does
not divest the COMELEC of its power to motu proprio review, revise, modify or reverse the
resolution of the Chief State Prosecutor and/or provincial/city prosecutors.29

In the recent case of Diño v. Olivarez,30 the Court had the occasion to expound on the nature and
consequences of the delegated authority of the Chief State Prosecutor, Provincial or City Fiscal
and their assistants to conduct preliminary investigations and to prosecute election offenses, as
follows:

From the foregoing, it is clear that the Chief State Prosecutor, all Provincial and City Fiscals,
and/or their respective assistants have been given continuing authority, as deputies of the
Commission, to conduct a preliminary investigation of complaints involving election offenses
under the election laws and to prosecute the same. Such authority may be revoked or withdrawn
anytime by the COMELEC, either expressly or impliedly, when in its judgment such revocation or
withdrawal is necessary to protect the integrity of the process to promote the common good, or
where it believes that successful prosecution of the case can be done by the COMELEC.
Moreover, being mere deputies or agents of the COMELEC, provincial or city prosecutors
deputized by the Comelec are expected to act in accord with and not contrary to or in derogation
of its resolutions, directives or orders of the Comelec in relation to election cases that such
prosecutors are deputized to investigate and prosecute. Being mere deputies, provincial and city
prosecutors, acting on behalf of the COMELEC, must proceed within the lawful scope of their
delegated authority.31 [citations omitted, emphasis ours]

In 2007, Congress enacted RA No. 9369, amending BP 881, among others, on the authority to
preliminarily investigate and prosecute. Section 43 of RA No. 9369, amending Section 265 of BP
881, provides:

SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows:

"SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have
the power, concurrent with the other prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and prosecute the same."
[emphases and underscoring ours]

In 2009, the petitioner and the COMELEC in BANAT v. Commission on Election32 questioned the
constitutionality of Section 43 of RA No. 9369.They argued that the Constitution vests in the
COMELEC the exclusive power to investigate and prosecute cases of violations of election laws.
They also alleged that Section 43 of RA No. 9369 is unconstitutional because it gives the other
prosecuting arms of the government concurrent power with the COMELEC to investigate and
prosecute election offenses.

In ruling that Section 2, Article IX (C) of the Constitution did not give the COMELEC the exclusive
power to investigate and prosecute cases of violations of election laws and, consequently, that
Section 43 of RA No. 9369 is constitutional, the Court held:

We do not agree with petitioner and the COMELEC that the Constitution gave the COMELEC the
"exclusive power" to investigate and prosecute cases of violations of election laws.
xxxx

It is clear that the grant of the "exclusive power" to investigate and prosecute election offenses to
the COMELEC was not by virtue of the Constitution but by BP 881, a legislative enactment. If the
intention of the framers of the Constitution were to give the COMELEC the "exclusive power" to
investigate and prosecute election offenses, the framers would have expressly so stated in the
Constitution. They did not.

In People v. Basilla, we acknowledged that without the assistance of provincial and city fiscals
and their assistants and staff members, and of the state prosecutors of the Department of
Justice, the prompt and fair investigation and prosecution of election offenses committed before
or in the course of nationwide elections would simply not be possible. In COMELEC v. Español,
we also stated that enfeebled by lack of funds and the magnitude of its workload, the COMELEC
did not have a sufficient number of legal officers to conduct such investigation and to prosecute
such cases. The prompt investigation, prosecution, and disposition of election offenses constitute
an indispensable part of the task of securing free, orderly, honest, peaceful, and credible
elections. Thus, given the plenary power of the legislature to amend or repeal laws, if Congress
passes a law amending Section 265 of BP 881, such law does not violate the
Constitution.33 [citations omitted; italics supplied]

Thus, as the law now stands, the COMELEC has concurrent jurisdiction with other prosecuting
arms of the government, such as the DOJ, to conduct preliminary investigation of all election
offenses punishable under the Omnibus Election Code, and to prosecute these offenses.

c. The COMELEC and the Supreme Court

Separately from the COMELEC’s power to investigate and prosecute election offenses (but still
pursuant to its terms) is the recognition by the Court that the COMELEC exercises considerable
latitude and the widest discretion in adopting its chosen means and methods of discharging its
tasks, particularly in its broad power "to enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative, referendum and recall."34 In the recent case of
Bedol v. Commission on Elections,35 the Court characterized the COMELEC’s power to conduct
investigations and prosecute elections offenses as "adjunct to its constitutional duty to enforce
and administer all election laws."36 For this reason, the Court concluded that the aforementioned
power "should be construed broadly,"37 i.e., "to give the COMELEC all the necessary and
incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and
credible elections."38

In this regard, I agree with the majority that the COMELEC must be given considerable latitude in
the fulfillment of its duty of ensuring the prompt investigation and prosecution of election
offenses. I duly acknowledge that the COMELEC exercises considerable latitude and the widest
discretion in adopting its chosen means and methods of discharging its tasks, particularly its
broad power "to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall."39 An expansive view of the powers of the
COMELEC has already been emphasized by the Court as early as 1941 (under the 1935
Constitution) in Sumulong, President of the Pagkakaisa ng Bayan v. Commission on
Elections,40 where the Court held:

The Commission on Elections is a constitutional body. It is intended to play a distinct and

important part in our scheme of government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should be allowed considerable
latitude in devising means and methods that will [e]nsure the accomplishment of the great
objective for which it was created – free, orderly and honest elections. We may not agree fully
with its choice of means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. Politics is a practical matter, and political questions
must be dealt with realistically – not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political strategists, and its
knowledge derived from actual experience in dealing with political controversies, is in a peculiarly
advantageous position to decide complex political questions.41 [emphasis ours]

To place this view in constitutional perspective, the independence granted to the COMELEC is
as broad as that granted to the Office of the Ombudsman, another constitutional entity engaged
in the investigation and prosecution of offenses, this time with respect to those committed by
public officers and employees in the performance of their duties. We have uniformly held that this
Court shall fully respect the Office of the Ombudsman’s independence in the performance of its
functions, save only where it commits grave abuse of discretion;42 in this eventuality it becomes
the duty of this Court to intervene pursuant to Section 1, Article VIII of the Constitution.

As it has been with the Ombudsman, so should independence in investigative and prosecutory
functions be with the COMELEC and its authority to investigate and prosecute election offenses.
In the same manner, the broad discretion granted has its limits. Lest it be forgotten, in addition to
its power to guard against grave abuse of discretion mentioned above, this Court, as the last
resort tasked to guard the Constitution and our laws through interpretation and adjudication of
justiciable controversies, possesses oversight powers to ensure conformity with the Constitution
– the ultimate instrument that safeguards and regulates our electoral processes and policies and
which underlies all these laws and the COMELEC’s regulations.43

In other words, while the Court acknowledges that the COMELEC "reigns supreme" in
determining the means and methods by which it acts in the investigation and prosecution of
election offenses, it cannot abdicate its duty to intervene when the COMELEC acts outside the
contemplation of the Constitution and of the law,44 such as when it sheds off its independence —
contrary to the Constitution — by sharing its decision-making with the DOJ.

In the context of the present case, this constitutional safeguard gives rise to the question: Did the
COMELEC gravely abuse its discretion in issuing COMELEC Resolution No. 9266 and Joint
Order No. 001-2011? My answer is a resounding yes.

II. COMELEC Resolution No. 9266 and Joint

Order No. 001-2011 Examined

COMELEC Resolution No. 9266 is merely a preparatory resolution reflecting the COMELEC en
banc’s approval of the creation of a committee with the DOJ to conduct preliminary investigation
on the alleged election offenses and anomalies committed during the 2004 and 2007 elections.45

Joint Order No. 001-2011, on the other hand, creates two committees or teams to investigate
and conduct preliminary investigation on the 2004 and 2007 National Elections Electoral Fraud
and Manipulation case – the Fact-Finding Team and the Joint DOJ-COMELEC Preliminary
Investigation Committee (Joint Committee).46

Under Section 5 of the Joint Order, the Fact-Finding Team shall be chaired by an Assistant
Secretary of the DOJ, and shall have six members: two (2) from the National Bureau of
Investigation (NBI); two (2) from the DOJ and two (2) from the COMELEC. Thus, effectively, the

COMELEC has ceded primacy in fact-finding functions to the Executive, given the composition of
this team as the NBI is an executive investigation agency under the DOJ.

Under Section 4 of the Joint Order, the Fact-Finding Team is tasked to:

1) Gather and document reports, intelligence information and investigative leads from
official as well as unofficial sources and informants;
 2) Conduct interviews, record testimonies, take affidavits of witnesses and collate
material and relevant documentary evidence, such as, but not limited to, election
documents used in the 2004 and 2007 national elections. For security reasons, or to
protect the identities of informants, the Fact-Finding Team may conduct interviews, or
document testimonies discreetly;

3) Assess and evaluate affidavits already executed and other documentary evidence
submitted or may be submitted to the Fact-Finding Team and/or the Committee;

4) Identify the offenders, their offenses and the manner of their commission, individually
or in conspiracy, and the provisions of election and general criminal laws violated,
establish evidence for individual criminal and administrative liability and prosecution, and
prepare the necessary documentation such as complaints and charge sheets for the
initiation of preliminary investigation proceedings against said individuals to be conducted
by the Committee;

5) Regularly submit to the Committee, the Secretary of Justice and the Chairman of the
COMELEC periodic reports and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the Committee’s basis for immediately
commencing appropriate preliminary investigation proceedings, as provided for under
Section 6 of this Joint Order; and [emphases supplied]

6) Upon the termination of its investigation, make a full and final report to the Committee,
the Secretary of Justice, and the Chairman of the COMELEC.47

The Fact-Finding Team shall be under the supervision of the Secretary of the DOJ and the
Chairman of the COMELEC or, in the latter’s absence, a Senior Commissioner of the
COMELEC. Under the Joint Order, the Fact-Finding Team shall have a Secretariat to provide it
with legal, technical and administrative assistance. The Fact-Finding Team shall also have an
office to be provided by either the DOJ or the COMELEC.48

Section 1 of the Joint Order provides that the Joint Committee is composed of three (3) officials
coming from the DOJ and two (2) officials from the COMELEC. Prosecutor General Claro A.
Arellano from the DOJ was designated as Chairperson, to be assisted by the following
members:49

1) Provincial Prosecutor George C. Dee, DOJ

2) City Prosecutor Jacinto G. Ang, DOJ

3) Director IV Ferdinand T. Rafanan, COMELEC

4) Atty. Michael D. Villaret, COMELEC

Section 2 of the Joint Order sets the mandate of the Joint Committee which is to "conduct the
necessary preliminary investigation on the basis of the evidence gathered and the charges
recommended by the Fact-Finding Team." Resolutions finding probable cause for election
offenses, defined and penalized under BP 881 and other election laws, shall be approved by the
COMELEC in accordance with the COMELEC Rules of Procedure.50

The procedure by which the resolutions finding probable cause is to be reviewed and/or
approved by the COMELEC is clearly set forth in Sections 3, 4 and 5 of the Rules of Procedure
on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007
Elections. Sections 3, 4 and 5 of the Rules state:
Section 3. Resolution of the Committee. – If the Committee finds cause to hold respondent for
trial, it shall prepare the resolution and information. The Committee shall certify under oath in the
information that it, or as shown by the record, has personally examined the complainant and the
witnesses, that there is reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof, that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given the opportunity to submit controverting
evidence. Otherwise, the Committee shall recommend the dismissal of the complaint.

Section 4. Approval of the Resolution. – Resolutions of the Committee relating to election

offenses, defined and penalized under the Omnibus Election Code, and other election laws shall
be approved by the COMELEC in accordance with the Comelec Rules of Procedure.

For other offenses, or those not covered by the Omnibus Election Code and other election laws,
resolutions of the Committee shall be approved by the Prosecutor General except in cases
cognizable by the Sandiganbayan, where the same shall be approved by the Ombudsman.

Section 5. Motion for Reconsideration. – Motions for Reconsideration on resolutions of the

Committee involving violations of the Omnibus Election Code and other election laws shall be
resolved by the COMELEC in accordance with its Rules.

For other cases not covered by the Omnibus Election Code, the Motion for Reconsideration shall
be resolved by the Committee in accordance with the Rules of Criminal Procedure.51 (emphasis
ours)

Finally, Section 9 of the Joint Order provides for the budget and financial support for the
operation of the Joint Committee and the Fact-Finding Team which shall be sourced from funds
of the DOJ and the COMELEC, as may be requested from the Office of the President.52

a. The Unconstitutional Distortion of the Existing Legal Framework

Section 2, Article IX (C) of the Constitution specifically vests in the COMELEC the plenary power
to "investigate and, where appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses and malpractices." To discharge its duty
effectively, the Constitution endowed the COMELEC with special features which elevate it above
other investigative and prosecutorial agencies of the government.

First and foremost, it extended independence to the COMELEC and insulated it from intrusion by
outside influences, political pressures and partisan politics. In Atty. Macalintal v.
COMELEC,53 already cited above, then Associate Justice Puno enumerated these safeguards to
protect the independence of the COMELEC, viz.:

Several safeguards have been put in place to protect the independence of the COMELEC from
unwarranted encroachment by the other branches of government. While the President appoints
the Commissioners with the concurrence of the Commission on Appointments, the
Commissioners are not accountable to the President in the discharge of their functions. They
have a fixed tenure and are removable only by impeachment. To ensure that not all
Commissioners are appointed by the same President at any one time, a staggered system of
appointment was devised. Thus, of the Commissioners first appointed, three shall hold office for
seven years, three for five years, and the last three for three years. Reappointment and
temporary designation or appointment is prohibited. In case of vacancy, the appointee shall only
serve the unexpired term of the predecessor. The COMELEC is likewise granted the power to
promulgate its own rules of procedure, and to appoint its own officials and employees in
accordance with Civil Service laws.

The COMELEC exercises quasi-judicial powers but it is not part of the judiciary. This Court has
no general power of supervision over the Commission on Elections except those specifically
granted by the Constitution. As such, the Rules of Court are not applicable to the Commission on
Elections. In addition, the decisions of the COMELEC are reviewable only by petition
for certiorari on grounds of grave abuse of discretion.54 [emphasis ours, citations omitted]

Under the Constitution, the Executive is tasked with the enforcement of the laws that the
Legislature shall pass. In the administration of justice, the Executive has the authority to
investigate and prosecute crimes through the DOJ, constituted in accordance with the
Administrative Code.55 Under our current laws, the DOJ has general jurisdiction to conduct
preliminary investigation of cases involving violations of the Revised Penal Code.56

With respect to the power to conduct preliminary investigation and to prosecute election
offenses, Congress has mandated under Section 42 of RA No. 9369 that the COMELEC shall
have the power concurrent with the other prosecuting arms of the government, to conduct
preliminary investigation of all election offenses punishable under the Omnibus Election Code,
and to prosecute these offenses. Concurrent jurisdiction has been defined as "equal jurisdiction
to deal with the same subject matter."57

Thus, under the present legal framework, the COMELEC and the DOJ, and its prosecuting arms,
have equal jurisdiction to conduct preliminary investigation and prosecute election offenses.
Effectively, this means that the DOJ and its prosecuting arms can already conduct preliminary
investigations and prosecute election offenses not merely as deputies, but independently of the
COMELEC.

This concurrent jurisdiction mandated under Section 42 of RA No. 9369 must, however, be read
together with and cannot be divorced from the provisions of the Constitution guaranteeing the
COMELEC’s independence as a Constitutional Commission, in particular, Sections 1, 2, 3 4, 5
and 6 of Article IX (A) of the 1987 Constitution. This constitutional guaranty of independence
cannot be taken lightly as it goes into the very purpose for which the COMELEC was established
as an independent Constitutional Commission.

To briefly recall and reiterate statutory and jurisprudential history, the COMELEC was
deliberately constituted as a separate and independent body from the other branches of
government in order to ensure the integrity of our electoral processes; it occupies a distinct place
in our scheme of government as the constitutional body charged with the administration of our
election laws. For this reason, the Constitution and our laws unselfishly granted it powers and
independence in the exercise of its powers and the discharge of its responsibilities.58

The independence of the COMELEC is a core constitutional principle that is shared and is
closely similar to the judicial independence that the Judiciary enjoys because they are both
expressly and textually guaranteed by our Constitution. Judicial independence has been
characterized as "a concept that expresses the ideal state of the judicial branch of government; it
encompasses the idea that individual judges and the judicial branch as a whole should work free
of ideological influence."59

The general concept of "judicial independence" can be "broken down into two distinct concepts:
decisional independence and institutional, or branch, independence." Decisional independence
"refers to a judge’s ability to render decisions free from political or popular influence based solely
on the individual facts and applicable law." On the other hand, institutional independence
"describes the separation of the judicial branch from the executive and legislative branches of
government." 60 "Decisional independence is the sine qua non of judicial independence."61

In the exercise of the COMELEC’s power to investigate and prosecute election offenses, the
"independence" that the Constitution guarantees the COMELEC should be understood in the
context of the same "decisional independence" that the Judiciary enjoys since both bodies
ascertain facts and apply the laws to these facts as part of their mandated duties.
In concrete terms, the "decisional independence" that the COMELEC should ideally have in the
exercise of its power to investigate and prosecute election offenses, requires the capacity to
exercise these functions according to its own discretion and independent consideration of the
facts, the evidence and the applicable law, "free from attempts by the legislative or executive
branches or even the public to influence the outcome of xxx the case."62 And even if the power to
investigate and prosecute election offences, upon determination of the existence of probable
cause, are executive and not judicial functions, the rationale behind the constitutional
independence of the Judiciary and the COMELEC is geared towards the same objective of de-
politicization of these institutions which are and should remain as non-political spheres of
government.

Tested under these considerations, the result cannot but be the unavoidable conclusion that
what exists under Joint Order No. 001-2011 and the Rules of Procedure on the Conduct of
Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections
is not a scheme whereby the COMELEC exercises its power to conduct preliminary investigation
and to prosecute elections offenses independently of other branches of government but a shared
responsibility between the COMELEC and the Executive Branch through the DOJ.

This is the incremental change at issue in the present case, whose adoption weakens the
independence of the COMELEC, opening it to further incremental changes on the basis of the
ruling in this case. Under the ponencia’s ruling allowing a shared responsibility, the
independence of the COMELEC ends up a boiled frog; we effectively go back to the country’s
situation before 1940 – with elections subject to intrusion by the Executive.

Significantly, the Solicitor General admitted during the oral arguments that the reports and or
recommendations of the Fact-Finding Team and Joint Committee were a shared responsibility
between the DOJ and the COMELEC members, viz.:

JUSTICE BRION: With that agreement perhaps we have laid down the basis for the
constitutional hierarchy in this case. So that here we recognize that the Bill of Rights is very
important, the due process clause is very important as against the police power of the State,
particularly in criminal prosecutions. Okay. Let me go now to a very, very small point. The
investigating team that was created by the COMELEC-DOJ resolution, can you tell me how it
operates?

SOLGEN CADIZ: Your Honor, there are two (2) bodies created, collaborative effort most of them.
One is the fact-finding team and the other one is the preliminary investigation committee.

JUSTICE BRION: In the fact-finding team, what is the composition?

SOLGEN CADIZ: DOJ, COMELEC and NBI.

JUSTICE BRION: Two (2) members each?

SOLGEN CADIZ: That is my recollection also, your Honor.

xxx

JUSTICE BRION: So effectively the DOJ has four (4) representatives in that investigating team,
right?

SOLGEN CADIZ: If that is the perspective, Your Honor, but the NBI of course, has a vastly
different function from the prosecutors of the DOJ.

JUSTICE BRION: Who has supervision over this investigation team?

SOLGEN CADIZ: Your Honor, it is a collaborative effort. There is no one head of this panel.
Likewise, as regards the preliminary investigation team which was collaborative effort.

xxx

JUSTICE BRION: What do the rules say? My question is as simple as that. Who has supervision
over the investigating team?

SOLGEN CADIZ: The Preliminary Investigation Committee, Your Honor, the Fact-Finding Team.

xxx

SOLGEN CADIZ: Your Honor, it’s here. Both the Secretary of Justice and the COMELEC
Chairman as I previously stated.

xxx

JUSTICE BRION: And I heard from you before that the decision here was unanimous among the
members. They have no problem.SOLGEN CADIZ: In fact, Your Honor, the resolution of the
COMELEC en banc says that it gave great weight to the assent of the two COMELEC
representatives in the preliminary investigation team.

JUSTICE BRION: Of the preliminary investigation, we are not there yet. We are only in the fact-
finding team.

SOLGEN CADIZ: There was no dissension, Your Honor.

xxx

JUSTICE BRION: They were unanimous. They agreed, they consulted with one another and they
agreed as their decision on what to send to their superiors, right?

xxx

SOLGEN CADIZ: There was a report to the preliminary investigation committee…

JUSTICE BRION: So the report was unanimous?

SOLGEN CADIZ: Yes, Your Honor.

JUSTICE BRION: So this was a shared report?

JUSTICE BRION: Okay. A shared understanding between the COMELEC and the DOJ.

SOLGEN CADIZ: But maintaining their own identities, your Honor.

JUSTICE BRION: Now, let’s go to the preliminary investigation team. What was the
membership?

SOLGEN CADIZ: Three (3) from DOJ and two (2) from COMELEC.

JUSTICE BRION: Three (3) from DOJ and two (2) from COMELEC.

They also came out with their recommendations, right?

SOLGEN CADIZ: Yes, Your Honor.

JUSTICE BRION: Were they also unanimous?

SOLGEN CADIZ: Yes, Your Honor.

JUSTICE BRION: So again this was a shared decision between the DOJ members and the
COMELEC members, right?

SOLGEN CADIZ: Yes, your Honor.

JUSTICE BRION: Okay. Thank you very much for that admission…63 [emphasis supplied]

To point out the obvious, the Fact-Finding Team, on the one hand, is composed of five members
from the DOJ and two members from the COMELEC. This team is, in fact, chaired by a DOJ
Assistant Secretary. Worse, the Fact-Finding Team is under the supervision of the Secretary of

DOJ and the Chairman of the COMELEC or, in the latter’s absence, a Senior Commissioner of
the COMELEC.

On the other hand, the Joint DOJ-COMELEC Preliminary Investigation Committee is composed
of three (3) officials coming from the DOJ and two (2) officials from the COMELEC. Prosecutor
General Claro A. Arellano from the DOJ is also designated as Chairperson of the Committee. Not
to be forgotten also is that budget and financial support for the operation of the Committee and
the Fact-Finding Team shall be sourced from funds of the DOJ and the COMELEC, as may be
requested from the Office of the President. This, again, is a perfect example of an incremental
change that the Executive can exploit.

What appears to be the arrangement in this case is a novel one, whereby the COMELEC –
supposedly an independent Constitutional body - has been fused with the prosecutorial arm of
the Executive branch in order to conduct preliminary investigation and prosecute election
offenses in the 2004 and 2007 National Elections. To my mind, this fusion or shared
responsibility between the COMELEC and the DOJ completely negates the COMELEC’s
"decisional independence" so jealously guarded by the framers of our Constitution who intended
it to be insulated from any form of political pressure.

To illustrate, Justice Presbitero J. Velasco raised during the oral arguments the prejudicial effects
(to the COMELEC’s decisional independence) of the joint supervision by the DOJ and the
COMELEC over the composite Fact-Finding Team and the Preliminary Investigation Committee,
viz.:

JUSTICE VELASCO: Counsel, would you agree that it was actually DOJ and COMELEC that
initially acted as complainant in this case?

ATTY. DULAY: No, Your Honor, that is not our understanding, Your Honor.

JUSTICE VELASCO: What precipitated the creation of the Preliminary Investigating Committee
and the fact-finding team under Joint Order No. 001-2011?

ATTY. DULAY: Well, if you were to take it, Your Honor, based on their Joint Circular, it would be
due to the recent discovery of new evidence and the surfacing of new witnesses, Your Honor.

JUSTICE VELASCO: Correct. So motu proprio, they initiated the investigation into possible
breach of election laws because of this new evidence discovered and the surfacing of new
witnesses, is that correct?
ATTY. DULAY: Yes, Your Honor.

xxx

JUSTICE VELASCO: Okay. So initially DOJ and COMELEC were the complainants in this
election matter. Now, the fact finding committee under Section 4 of Joint Order 001-2011 is
under the supervision of the Secretary of Justice and COMELEC Chairman, correct?

ATTY. DULAY: Yes, Your Honor.

JUSTICE VELASCO: What does it mean, what does it mean if these two heads of two powerful
branches of government have supervision over the activities of the fact-finding team? What can it
do?

ATTY. DULAY: Well, Your Honor our contention is that the merger of the powers of the … an
independent constitutional commission and an executive department, the executive branch, Your
Honor, is a violation of the principle of separation of powers, Your Honor. Because while the law
may provide that each body or entity the COMELEC or the DOJ have concurrent jurisdiction over
election offenses, this does not mean that this can be exercised jointly, Your Honor. And what we
are really objecting, Your Honor, is the fact that when they join, it is now a… it constitutes a
violation of that principle of separation of powers, Your Honor.

JUSTICE VELASCO: Okay, as two branches or one department and a constitutional body
supervising the fact finding, so under the Joint Order 001-2011 it can give instructions to the fact-
finding team as to how to go about in performing its functions under Section 4 of said joint order,
is that correct?

ATTY. DULAY: Yes, Your Honor.

JUSTICE VELASCO: So they can issue instruction and orders to the fact-finding team in
gathering reports, conducting interviews, assessing affidavits and the other functions of the fact-
finding team, okay?

ATTY. DULAY: Yes, Your Honor.

JUSTICE VELASCO: And Preliminary Investigation Committee is composed of representatives

from the same, DOJ and COMELEC also, correct?

ATTY. DULAY: Yes, Your Honor.

JUSTICE VELASCO: Now the reports of the fact finding team are submitted also to the Secretary
of Justice and Chairman of COMELEC, is that correct?

ATTY. DULAY: Yes, under the order, Your Honor.

JUSTICE VELASCO: Okay. So in short the investigation, the investigator actually is also the
complainant in this electoral matter? What’s your view on that?

ATTY. DULAY: Yes, Your Honor, and the judge also, Your Honor, because the same body.
That’s why our contention, Your Honor, is that the fact-finding team and the Preliminary
Investigation Committee, is one and the same creature, Your Honor. They are both created by…
jointly by the COMELEC and the DOJ.

JUSTICE VELASCO: And the resolutions of the Preliminary Investigation Committee will have to
be submitted first to whom?
ATTY. DULAY: If it is an election offense, Your Honor, to the COMELEC, if it is a non-election
offense to the Department of Justice, Your Honor.

JUSTICE VELASCO: So the resolution of the criminal complaint will have to be done by one of
the agencies over which has supervision and control over two members of the Preliminary
Investigation Committee, is that correct?

ATTY. DULAY: Yes, Your Honor. If, your Honor please, the supervision of the Secretary of
Justice and the COMELEC Chairman refers to the fact-finding team as well as to the Preliminary
Investigation Committee which are composed… it’s a composite team, really, Your Honor, as far
as the fact finding team, there’s the DOJ, there’s the NBI, they are the two representatives from
the COMELEC. So if we were to take the line that they would be under the supervision of one of
the other heads, then it would be a head of an executive department supervising the work of a
representative from an independent constitutional commission and vice versa, Your Honor. So
there is in that sense a diminution, Your Honor, of the power and authority of the COMELEC
which it should have in the first place exercised solely or singularly in the same way that the DOJ
under its concurrent jurisdiction could have exercised separately, Your Honor.64 [emphasis
supplied]

Given that the membership of the composite Fact-Finding Team and Preliminary Investigation
Committee is numerically tilted in favor of the DOJ, plus the fact that a member of the DOJ
exercises supervision over the representatives of the COMELEC, it cannot be discounted that
the latter runs the risk of being pressured into bending their analyses of the evidence to reach
results (a finding of probable cause, in this case) more pleasing or tailor-fitted to the outcomes
desired by their DOJ supervisors who belong to the majority. In this situation, the COMELEC’s
independent consideration of the facts, evidence and applicable law with respect to the
complaints for electoral sabotage filed against the respondents cannot but be severely
compromised. The following exchanges during the oral arguments are also very instructive:

ASSOCIATE JUSTICE ABAD: Now here, the Election Code grants the COMELEC and the other
prosecution arms of the government concurrent authority to conduct preliminary investigation of
election offenses, is that correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE ABAD: But your theory is that, given their concurrent authority they can
conduct preliminary investigation of election offenses.

SOLICITOR GENERAL CADIZ: That was COMELEC and DOJ decided in this particular matter,
Your Honor.

xxx

ASSOCIATE JUSTICE ABAD: No, I’m asking you if you adopt that position or not, that they
concurrently conduct a joint investigation, concurrent?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE ABAD: Alright. Now, the prosecution arm of the government are under
the Secretary of Justice, do you agree?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE ABAD: And the Secretary of Justice is the alter ego of the President, do
you agree?
SOLICITOR GENERAL CADIZ: I think that is true.

ASSOCIATE JUSTICE ABAD: The President is essentially a politician belonging to a political

party, will you agree?

SOLICITOR GENERAL CADIZ: He is the President of the people, Your Honor.

ASSOCIATE JUSTICE ABAD: Oh yes.

xxx

ASSOCIATE JUSTICE ABAD: As a matter of fact, he is also the titular President of the Liberal
Party, is that correct?

SOLICITOR GENERAL CADIZ: Yes, but he is the President of a hundred million Filipinos.

xxx

ASSOCIATE JUSTICE ABAD: Has the COMELEC which is an independent constitutional body
any business doing work assigned to it by law hand-in-hand with an agency under the direct
control of a politician?

SOLICITOR GENERAL CADIZ: I think that’s a wrong premise, Your Honor.

ASSOCIATE JUSTICE ABAD: Explain to me. Where is the error in my premise?

xxx

SOLICITOR GENERAL CADIZ: Thank you very much, Your Honor. Thank you very much, thank
you, Your Honor. COMELEC and DOJ they decided to have a Fact-Finding Team and the
Preliminary Investigating Committee. The Fact-Finding Team is composed of COMELEC
personnel, DOJ personnel, and NBI personnel. The Preliminary Investigating Committee is
composed to COMELEC people and DOJ personnel. Your Honor, they have, the Fact-Finding
Team, made a report, submitted it both to COMELEC, to the Secretary of Justice, and to the
Preliminary Investigating Committee. The Preliminary Investigating Committee had a unanimous
finding and they made a report to the COMELEC En Banc. It is the COMELEC En Banc, Your
Honor, which had the final say on the findings of Preliminary Investigating Committee. So, I think,
Your Honor, the premise is wrong, that the independent of the COMELEC has been
compromised in this particular matter because, in fact, the COMELEC En Banc, Your Honor did
not adopt in toto the findings of the Preliminary Investigating Committee. And You Honor, there is
a dimension here that not only election offenses are being investigated but also common crimes
under the Revised Penal Code. So, in the collaboration between DOJ and the COMELEC, what
was sought to be made, or what was sought to be achieved was efficiency, and what was sought
to be avoided was redundancy, Your Honor. And again, if I may reiterate, Your Honor please, to
your question about compromising the independence of the COMELEC, I respectfully beg to
disagree with that premise, Your Honor, because at the end of the day it was the COMELEC En
Banc who decided to file an Information or to have a Resolution asking the Law Department to
file an information against the three (3) accused in this case Gloria Macapagal-Arroyo, Lintang
Bedol, and former Governor Zaldy Ampatuan, Sr.

ASSOCIATE JUSTICE ABAD: Acting on the findings of a Committee dominated by

representatives of the DOJ, is that correct?

SOLICITOR GENERAL CADIZ: There was a unanimity, Your Honor.

ASSOCIATE JUSTICE ABAD: Yes, yes. Well, the Committee dominated ….

SOLICITOR GENERAL CADIZ: I think the numbers are…..

ASSOCIATE JUSTICE ABAD: 3-2.

SOLICITOR GENERAL CADIZ: 3-2?

ASSOCIATE JUSTICE ABAD: Yes.

SOLICITOR GENERAL CADIZ: There was no dissention, there was a unanimity in finding and at
the end of the day there were only recommendatory to the COMELEC En Banc.

ASSOCIATE JUSTICE ABAD: Well, that is true but the COMELEC did not make an investigation.
It was not the one that denied the respondents the right to ask for time to file counter-affidavit.
These rulings were made by that Committee dominated by representatives of the DOJ. Anyway,
you just answered it, although not exactly to my satisfaction but you answered it. Do you know if
under the Election Code, tell me if I’m exceeded my time already, do you know if under the
Election Code, the COMELEC must directly conduct the preliminary investigation of election
offenses? Does it have to conduct directly by itself preliminary investigation of election offenses,
the COMELEC?

SOLICITOR GENERAL CADIZ: The Law Department can do that, Your Honor.

ASSOCIATE JUSTICE ABAD: Well, so I will read to you Section 43 of Republic Act 9369, it says
that, and I quote, "That the COMELEC shall, through it’s duly authorized legal officers, have the
power concurrent with the other prosecuting arms of the government, to conduct preliminary
investigation of all election offenses." Now, since the law specifically provides that the
COMELEC is to exercise its power to conduct preliminary investigation through its legal officers,
by what authority did the COMELEC delegate that power to a joint committee dominated by
strangers to its organization?

SOLICITOR GENERAL CADIZ: Your Honor, the power of the COMELEC to investigate and
prosecute election related offenses is not exclusive. It is concurrent with prosecuting arms of the
government, that is the Department of Justice. In other words, Your Honor, the Department of
Justice under the amended law has the power to investigate and prosecute election related
offenses likewise, so there was no undue delegation as premises in your question, Your Honor,
but this is a concurrent jurisdiction with the DOJ.

ASSOCIATE JUSTICE ABAD: So, that’s what made the COMELEC disregard what the law says,
"shall’" which is, as you say, you know in law "shall" means a command, "Shall, through its duly
authorized legal officers, have the power to conduct preliminary investigation of all election
offenses." At any rate, I think, you’ve have answered.

SOLICITOR GENERAL CADIZ: It is not exclusive, Your Honor.

ASSOCIATE JUSTICE ABAD: You’ve given your answer.

SOLICITOR GENERAL CADIZ: It is not exclusive, Your Honor, the law states its power.

ASSOCIATE JUSTICE ABAD: No, the method is exclusive. The power to investigate is not
exclusive, if the law expressly says "through its fully authorized legal officers" precisely because
this is in consonance with the policy laid down by the Constitution that the COMELEC shall enjoy
autonomy, independent of any branch of government. It should not be working with the political
branch of the government to conduct its investigation.It should try to maintain its independence.
At any rate, I understand that…Can I continue Chief?65 [emphasis supplied]

Considering the terms of the COMELEC-DOJ resolutions and exchanges and admissions from
no less than the Solicitor General, the resulting arrangement – involving as it does a joint or
shared responsibility between the DOJ and the COMELEC – cannot but be an arrangement that
the Constitution and the law cannot allow, however practical the arrangement may be from the
standpoint of efficiency. To put it bluntly, the joint or shared arrangement directly goes against
the rationale that justifies the grant of independence to the COMELEC – to insulate it, particularly
its role in the country’s electoral exercise, from political pressures and partisan politics.

As a qualification to the above views, I acknowledge — as the Court did in People v. Hon.
Basilla66 — that "the prompt and fair investigation and prosecution of election offenses committed
before or in the course of nationwide elections would simply not be possible without the
assistance of provincial and city fiscals and their assistants and staff members, and of the

state prosecutors of the DOJ."67 That the practice of delegation of authority by the COMELEC,
otherwise known as deputation, has long been upheld by this Court is not without significance, as
it is the only means by which its constitutionally guaranteed independence can remain
unfettered.

In other words, the only arrangement constitutionally possible, given the independence of the
COMELEC and despite Section 42 of RA 9369, is for the DOJ to be a mere deputy or delegate of
the COMELEC and not a co-equal partner in the investigation and prosecution of election
offenses WHENEVER THE COMELEC ITSELF DIRECTLY ACTS. While the COMELEC and the
DOJ have equal jurisdiction to investigate and prosecute election offenses (subject to the rule
that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to
the exclusion of the others),68 the COMELEC — whenever it directly acts in the fact-finding and
preliminary investigation of elections offences — can still work with the DOJ and seek its
assistance without violating its constitutionally guaranteed independence, but it can only do so as
the principal in a principal-delegate relationship with the DOJ where the latter acts as the
delegate.

This arrangement preserves the COMELEC’s independence as "being mere deputies or agents
of the COMELEC, provincial or city prosecutors deputized . . . are expected to act in accord with
and not contrary to or in derogation of its resolutions, directives or orders xxx in relation to
election cases that such prosecutors are deputized to investigate and prosecute. Being mere
deputies, provincial and city prosecutors, acting on behalf of the COMELEC, shall also proceed
within the lawful scope of their delegated authority."69

III. The Consequences of Unconstitutionality

In the usual course, the unconstitutionality of the process undertaken in conducting the
preliminary investigation would result in its nullity and the absence of the necessary preliminary
investigation that a criminal information requires. Three important considerations taken together,
however, frustrate the petitioners’ bid to achieve this result so that the petitions ultimately have to
be dismissed.

First, separate from the COMELEC’s decisional independence, it also has the attribute of
institutional independence, rendered necessary by its key role in safeguarding our electoral
processes; the Constitution’s general grant of independence entitles it not only to the discretion
to act as its own wisdom may dictate, but the independence to act on its own separately and
without interference from the other branches of the government.

Thus, these other branches of government, including the Judiciary, cannot interfere with
COMELEC decisions made in the performance of its duties, save only if the COMELEC abuses
the exercise of its discretion70 — a very high threshold of review from the Court’s point of view.
Any such review must start from the premise that the COMELEC is an independent body whose
official actions carry the presumption of legality, and any doubt on whether the COMELEC acted
within its constitutionally allowable sphere should be resolved in its favor.

In the context of the present case, the petitioners’ allegations and evidence on the infirmity of the
COMELEC’s determination of probable cause should clearly be established; where the
petitioners’ case does not rise above the level of doubt – as in this case – the petition should fail.

Second and taking off from where the first above consideration ended, Section 2 of Joint Order
No. 001-2011 grants the COMELEC the final say in determining whether probable cause exists.
Section 2 reads:

Section 2. Mandate. – The Committee shall conduct the necessary preliminary investigation on
the basis of the evidence gathered and the charges recommended by the Fact-Finding Team
create and referred to in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and other election laws shall
be approved by the COMELEC in accordance with the COMELEC Rules of Procedure. For other
offenses, or those not covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the appropriate courts.

While the fact-finding and the preliminary investigation stages, as envisioned in the various
COMELEC-DOJ instruments, may have resulted in a constitutionally impermissible arrangement
between the COMELEC and the DOJ, Section 2 of Joint Order No. 001-2011 shows that it is the

COMELEC that must still solely act and its actions can be constitutionally valid if made in a
process that is free from any attendant participation by the Executive.

From the petitioners’ perspective, while the disputed resolutions involved a fact-finding and a
preliminary investigation phases that are constitutionally objectionable, the petitioners still have
to show that indeed the COMELEC had left the matter of determining probable cause ultimately
to the Fact-Finding Team and the Joint Committee. It is on this point that the petitioners’ case is
sadly deficient. In contrast with this deficiency, the records show that the COMELEC did indeed
meet, on its own, to determine probable cause based on the evidence presented by its own
representatives.

Third, since the corresponding informations have already been filed in court, claims of absence
of, or irregularity in, the preliminary investigation are matters which appropriately pertain to the
lower court in the exercise of its jurisdiction.71 After the lower court has effectively assumed
jurisdiction, what is left for this Court to act upon is solely the issue of the constitutionality of the
creation and operation of the Fact-Finding Team and the Joint Committee for being violative of
the COMELEC’s independence. Other constitutional issues (equal protection, due process, and
separation of powers) simply arose as incidents of the shared COMELEC-DOJ efforts, and need
not be discussed after the determination of the unconstitutionality of the shared COMELEC-DOJ
arrangements for violation of the COMELEC’s independence.

In sum, while the DOJ-COMELEC arrangements compromised the COMELEC’s independence,

the filing of the informations in court, upon the COMELEC’s own determination of probable
cause, effectively limited not only the prosecution’s discretion (for example, on whether to
proceed or not), but also the Court’s jurisdiction to pass upon the entire plaint of the petitioners.
Crespo v. Judge Mogul72 teaches us that –

The filing of a complaint or information in Court initiates a criminal action. The Court thereby
acquires jurisdiction over the case, which is the authority to hear and determine the case. x x x.

xxxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he cannot impose his
opinion on the trial court. The Court is the best and sole judge on what to do with the case before
it. The determination of the case is within its exclusive jurisdiction and competence. [emphases
ours, citations omitted]

To reiterate, except for the resolution of the issue of the constitutionality of creating a Joint
Committee and a Fact-Finding Team and of the incidental issues bearing on this constitutional
interpretation – matters which only this Court may authoritatively determine73 – this Court should
now refrain from making any pronouncement relative to the disposition of the criminal cases now
before the lower court.

Based on these considerations — particularly, on the lack of a factual showing that the
COMELEC did not determine the existence of probable cause by itself and relied solely on its
unconstitutional arrangements with the DOJ — I support the dismissal of the petitions save for
the ruling that the shared COMELEC-DOJ investigatory and prosecutory arrangements, as
envisioned in the disputed resolutions, are unconstitutional.

Lest this opinion be misconstrued and for greater emphasis, while I ultimately sustain the
COMELEC’s finding of probable cause based on the collective considerations stated above, the
constitutionally objectionable arrangement of a shared responsibility between the COMELEC and
the DOJ was not necessarily saved by the existence of Section 2 of Joint Order No. 001-2011. I
sustain the COMELEC’s finding of probable cause under the unique facts and developments in
this case, based on the institutional independence the COMELEC is entitled to; the lack of proof
that the COMELEC did not act independently; and the adduced fact that the COMELEC did
indeed meet to consider the findings presented to it by its representatives. I make this conclusion
without prejudice to proof of other facts that, although bearing on the COMELEC’s independence
but are not here decided, may yet be submitted by the petitioners before the trial court if they are
appropriate for that court’s consideration on the issues properly raised.

For greater certainty for the COMELEC in its future actions in enforcing and administering
election-related laws, let me advise that what I highlighted regarding the nature and breadth of
the constitutionally guaranteed independence of the COMELEC should always be seriously
considered as guiding lights.

For the Court en bane's consideration.

G.R. No. 199082 July 23, 2013 JOSE MIGUEL T. ARROYO

vs. DEPARTMENT OF JUSTICE
G.R. No. 199082 July 23, 2013
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; et al, Respondents.
PERALTA, J.:

NATURE:

These are separate motions for reconsideration filed by movants Gloria Macapagal Arroyo in
G.R. No. 199118 and Jose Miguel T. Arroyo in G.R. No. 199082 praying that the Court take a
second look at our September 18, 2012 Decision3 dismissing their petitions and supplemental
 petitions against respondents Commission on Elections (Comelec), the Department of Justice
(DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel), Joint DOJ-Comelec Preliminary
Investigation Committee (Joint Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding
Team), et al.

FACTS:

On August 15, 2011, the Comelec and the DOJ issued a Joint Order creating and constituting a
Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud
and manipulation cases

In its Initial Report of the Fact-Finding Team concluded that manipulation of the results in the
May 14, 2007 senatorial elections in the provinces of North and South Cotabato, and
Maguindanao was indeed perpetrated. It recommended that Petitioner Benjamin S. Abalos,
GMA, and Mike Arroyo be subjected to preliminary investigation for electoral sabotage and
manipulating the election results.
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.
On September 18, 2012, the Court rendered the assailed Decision. It ruled that:
1. Fact- Finding Team’s Initial Report dated October 20, 2011, are declared VALID. However, the
Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in
the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication.
2. The Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the
Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the
preliminary investigation is hereby declared VALID.

ISSUES:
1. Whether or not the creation of the Joint Panel undermines the decisional independence of the
Comelec.
2. Whether or not the DOJ should conduct preliminary investigation only when deputized by the
Comelec but not exercise concurrent jurisdiction

HELD:
1. The grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included a provision
in the assailed Joint Order whereby the resolutions of the Joint Committee finding probable
cause for election offenses shall still be approved by the Comelec in accordance with the
Comelec Rules of Procedure.45 With more reason, therefore, that we the the court cannot
consider the creation of the Joint Committee as an abdication of the Comelec’s independence
enshrined in the 1987 Constitution

2. The creation of a Joint Committee is not repugnant to the concept of "concurrent jurisdiction"
authorized by the amendatory law The doctrine of concurrent jurisdiction means equal jurisdiction
to deal with the same subject matter. Contrary to the contention of the petitioners, there is no
prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited
is the situation where one files a complaint against a respondent initially with one office (such as
the Comelec) for preliminary investigation which was immediately acted upon by said office and
the re-filing of substantially the same complaint with another office (such as the DOJ). The
subsequent assumption of jurisdiction by the second office over the cases filed will not be
allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the
complaint shall exercise jurisdiction to the exclusion of the others.

FALLO: petition is denied

D. Commission on Audit

Section 1

G.R. No. 192791 April 24, 2012

DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, Respondent.

DECISION

VELASCO, JR., J.:

In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on
Audit and accordingly prays that a judgment issue "declaring the unconstitutionality" of the
appointment.

The facts of the case are as follows:

On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo)

appointed Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a
term of seven (7) years, pursuant to the 1987 Constitution.1 Carague’s term of office started on
February 2, 2001 to end on February 2, 2008.

Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar

(Villar) as the third member of the COA for a term of seven (7) years starting February 2, 2004
until February 2, 2011.

Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as
COA Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to
April 14, 2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as
Chairman of the COA. Shortly thereafter, on June 11, 2008, the Commission on Appointments
confirmed his appointment. He was to serve as Chairman of COA, as expressly indicated in the
appointment papers, until the expiration of the original term of his office as COA Commissioner
or on February 2, 2011. Challenged in this recourse, Villar, in an obvious bid to lend color of title
to his hold on the chairmanship, insists that his appointment as COA Chairman accorded him a
fresh term of seven (7) years which is yet to lapse. He would argue, in fine, that his term of office,
as such chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008 when
he was appointed to that position.

Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA

Commissioner to serve the unexpired term of Villar as Commissioner or up to February 2, 2011.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed
to President Benigno S. Aquino III, signified his intention to step down from office upon the
appointment of his replacement. True to his word, Villar vacated his position when President
Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This
development has rendered this petition and the main issue tendered therein moot and academic.

case is considered moot and academic when its purpose has become stale,2 or when it ceases to
present a justiciable controversy owing to the onset of supervening events,3 so that a resolution of
the case or a declaration on the issue would be of no practical value or use.4 In such instance,
there is no actual substantial relief which a petitioner would be entitled to, and which will anyway
be negated by the dismissal of the basic petition.5 As a general rule, it is not within Our charge
and function to act upon and decide a moot case. However, in David v. Macapagal-Arroyo,6 We
acknowledged and accepted certain exceptions to the issue of mootness, thus:

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution, second, the exceptional character of the situation and the
paramount public interest is involved, third, when constitutional issue raised requires formulation
of controlling principles to guide the bench, the bar, and the public, and fourth, the case is
capable of repetition yet evading review.

Although deemed moot due to the intervening appointment of Chairman Tan and the resignation
of Villar, We consider the instant case as falling within the requirements for review of a moot and
academic case, since it asserts at least four exceptions to the mootness rule discussed in David,
namely: there is a grave violation of the Constitution; the case involves a situation of exceptional
character and is of paramount public interest; the constitutional issue raised requires the
formulation of controlling principles to guide the bench, the bar and the public; and the case is
capable of repetition yet evading review.7 The situation presently obtaining is definitely of such
exceptional nature as to necessarily call for the promulgation of principles that will henceforth
"guide the bench, the bar and the public" should like circumstance arise. Confusion in similar
future situations would be smoothed out if the contentious issues advanced in the instant case
are resolved straightaway and settled definitely. There are times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be addressed. To borrow from Javier v.
Pacificador,8 "Justice demands that we act then, not only for the vindication of the outraged right,
though gone, but also for the guidance of and as a restraint in the future."

Both procedural and substantive issues are raised in this proceeding. The procedural aspect
comes down to the question of whether or not the following requisites for the exercise of judicial
review of an executive act obtain in this petition, viz: (1) there must be an actual case or
justiciable controversy before the court; (2) the question before it must be ripe for adjudication;
(3) the person challenging the act must be a proper party; and (4) the issue of constitutionality
must be raised at the earliest opportunity and must be the very litis mota of the case.9

To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing
as a taxpayer and citizen, lacks the necessary standing to challenge his appointment.10 On the
other hand, the Office of the Solicitor General (OSG), while recognizing the validity of Villar’s
appointment for the period ending February 11, 2011, has expressed the view that petitioner
should have had filed a petition for declaratory relief or quo warranto under Rule 63 or Rule 66,
respectively, of the Rules of Court instead of certiorari under Rule 65.

Villar’s posture on the absence of some of the mandatory requisites for the exercise by the Court
of its power of judicial review must fail. As a general rule, a petitioner must have the necessary
personality or standing (locus standi) before a court will recognize the issues presented. In
Integrated Bar of the Philippines v. Zamora, We defined locus standi as:
x x x a personal and substantial interest in the case such that the party has sustained or will
sustain a direct injury as a result of the governmental act that is being challenged. The term
"interest" means a material interest, an interest in issue affected by the decree, as distinguished
from mere interest in the question involved, or a mere incidental interest. The gist of the question
of standing is whether a party alleges "such personal stake in the outcome of the controversy as
to assure the concrete adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions."11

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act.12 However, the Court has time and again acted liberally on
the locus standi requirements and has accorded certain individuals, not otherwise directly
injured, or with material interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake.13 The rule on locus standi is after all a mere
procedural technicality in relation to which the Court, in a catena of cases involving a subject of
transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may
not have been personally injured by the operation of a law or any other government act.14 In
David, the Court laid out the bare minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of the election
law in question;

3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained of infringes
their prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to
institute the instant petition.

Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of
the availment of certiorari as a medium to inquire on whether the assailed appointment of
respondent Villar as COA Chairman infringed the constitution or was infected with grave abuse of
discretion. For under the expanded concept of judicial review under the 1987 Constitution, the
corrective hand of certiorari may be invoked not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "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."15 "Grave abuse of discretion" denotes:

such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words, where the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation of law.16

We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave
abuse of discretion.
This brings Us to the pivotal substantive issue of whether or not Villar’s appointment as COA
Chairman, while sitting in that body and after having served for four (4) years of his seven (7)
year term as COA commissioner, is valid in light of the term limitations imposed under, and the
circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, one commissioner for five
years, and the other commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall
any member be appointed or designated in a temporary or acting capacity. (Emphasis added.)17

And if valid, for how long can he serve?

At once clear from a perusal of the aforequoted provision are the defined restricting features in
the matter of the composition of COA and the appointment of its members (commissioners and
chairman) designed to safeguard the independence and impartiality of the commission as a body
and that of its individual members.18 These are, first, the rotational plan or the staggering term in
the commission membership, such that the appointment of commission members subsequent to
the original set appointed after the effectivity of the 1987 Constitution shall occur every two
years; second, the maximum but a fixed term-limit of seven (7) years for all commission
members whose appointments came about by reason of the expiration of term save the
aforementioned first set of appointees and those made to fill up vacancies resulting from certain
causes; third, the prohibition against reappointment of commission members who served the full
term of seven years or of members first appointed under the Constitution who served their
respective terms of office; fourth, the limitation of the term of a member to the unexpired portion
of the term of the predecessor; and fifth, the proscription against temporary appointment or
designation.

To elucidate on the mechanics of and the adverted limitations on the matter of COA-member
appointments with fixed but staggered terms of office, the Court lays down the following
postulates deducible from pertinent constitutional provisions, as construed by the Court:

1. The terms of office and appointments of the first set of commissioners, or the seven,
five and three-year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had
already expired. Hence, their respective terms of office find relevancy for the most part
only in understanding the operation of the rotational plan. In Gaminde v. Commission on
Audit,19 the Court described how the smooth functioning of the rotational system
contemplated in said and like provisions covering the two other independent
commissions is achieved thru the staggering of terms:

x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional

Commissions under the 1987 Constitution must start on a common date [February 02,
1987, when the 1987 Constitution was ratified] irrespective of the variations in the dates
of appointments and qualifications of the appointees in order that the expiration of the
first terms of seven, five and three years should lead to the regular recurrence of the two-
year interval between the expiration of the terms.

x x x In case of a belated appointment, the interval between the start of the terms and the
actual appointment shall be counted against the appointee.20 (Italization in the original;
emphasis added.)

Early on, in Republic v. Imperial,21 the Court wrote of two conditions, "both
indispensable to [the] workability" of the rotational plan. These conditions may be
described as follows: (a) that the terms of the first batch of commissioners should
start on a common date; and (b) that any vacancy due to death, resignation or
 disability before the expiration of the term should be filled only for the unexpired
balance of the term. Otherwise, Imperial continued, "the regularity of the intervals
between appointments would be destroyed." There appears to be near unanimity
as to the purpose/s of the rotational system, as originally conceived, i.e., to place
in the commission a new appointee at a fixed interval (every two years presently),
thus preventing a four-year administration appointing more than one permanent
and regular commissioner,22 or to borrow from Commissioner Monsod of the 1986
CONCOM, "to prevent one person (the President of the Philippines) from
dominating the commissions."23 It has been declared too that the rotational plan
ensures continuity in, and, as indicated earlier, secure the independence of, the
commissions as a body.24

2. An appointment to any vacancy in COA, which arose from an expiration of a term, after
the first chairman and commissioners appointed under the 1987 Constitution have bowed
out, shall, by express constitutional fiat, be for a term of seven (7) years, save when the
appointment is to fill up a vacancy for the corresponding unserved term of an outgoing
member. In that case, the appointment shall only be for the unexpired portion of the
departing commissioner’s term of office. There can only be an unexpired portion when,
as a direct result of his demise, disability, resignation or impeachment, as the case may
be, a sitting member is unable to complete his term of office.25 To repeat, should the
vacancy arise out of the expiration of the term of the incumbent, then there is technically
no unexpired portion to speak of. The vacancy is for a new and complete seven-year
term and, ergo, the appointment thereto shall in all instances be for a maximum seven (7)
years.

3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the "reappointment" of a
member of COA after his appointment for seven (7) years. Writing for the Court in
Nacionalista Party v. De Vera,26 a case involving the promotion of then COMELEC
Commissioner De Vera to the position of chairman, then Chief Justice Manuel Moran
called attention to the fact that the prohibition against "reappointment" comes as a
continuation of the requirement that the commissioners––referring to members of the
COMELEC under the 1935 Constitution––shall hold office for a term of nine (9) years.
This sentence formulation imports, notes Chief Justice Moran, that reappointment is not
an absolute prohibition.

4. The adverted system of regular rotation or the staggering of appointments and terms in
the membership for all three constitutional commissions, namely the COA, Commission
on Elections (COMELEC) and Civil Service Commission (CSC) found in the 1987
Constitution was patterned after the amended 1935 Constitution for the appointment of
the members of COMELEC27 with this difference: the 1935 version entailed a regular
interval of vacancy every three (3) years, instead of the present two (2) years and there
was no express provision on appointment to any vacancy being limited to the unexpired
portion of the his predecessor’s term. The model 1935 provision reads:

Section 1. There shall be an independent Commission on Elections composed of a Chairman

and two other members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine years, another for six
years and the third for three years. x x x

Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be
it for the same position (commissioner to another position of commissioner) or upgraded position
(commissioner to chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is
drawn in this regard to the Court’s disposition in Matibag v. Benipayo.28
Villar’s promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a
different office and requiring another confirmation by the Commission on Appointments.

Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2),
Article IX(D) of the Constitution on the ban against reappointment in relation to the appointment
issued to respondent Villar to the position of COA Chairman.

Without question, the parties have presented two (2) contrasting and conflicting positions.
Petitioner contends that Villar’s appointment is proscribed by the constitutional ban on
reappointment under the aforecited constitutional provision. On the other hand, respondent Villar
initially asserted that his appointment as COA Chairman is valid up to February 2, 2015 pursuant
to the same provision.

The Court finds petitioner’s position bereft of merit. The flaw lies in regarding the word
"reappointment" as, in context, embracing any and all species of appointment.

The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it
must be given its literal meaning and applied without attempted interpretation.29 This is known as
the plain meaning rule enunciated by the maxim verba legis non est recedendum, or from the
words of a statute there should be no departure.30

The primary source whence to ascertain constitutional intent or purpose is the language of the
provision itself.31 If possible, the words in the Constitution must be given their ordinary meaning,
save where technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure
Administration illustrates the verbal legis rule in this wise:

We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyer’s document, it being
essential for the rule of law to obtain that it should ever be present in the people’s
consciousness, its language as much as possible should be understood in the sense they have
in common use. What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus there are cases where the need for
construction is reduced to a minimum.32 (Emphasis supplied.)

Let us dissect and examine closely the provision in question:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, one commissioner for five
years, and the other commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor. x x x (Emphasis
added.)

The first sentence is unequivocal enough. The COA Chairman shall be appointed by the
President for a term of seven years, and if he has served the full term, then he can no longer be
reappointed or extended another appointment. In the same vein, a Commissioner who was
appointed for a term of seven years who likewise served the full term is barred from being
reappointed. In short, once the Chairman or Commissioner shall have served the full term of
seven years, then he can no longer be reappointed to either the position of Chairman or
Commissioner. The obvious intent of the framers is to prevent the president from "dominating"
the Commission by allowing him to appoint an additional or two more commissioners.
The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention
barred reappointment to be extended to commissioner-members first appointed under the 1987
Constitution to prevent the President from controlling the commission. Thus, the first Chairman
appointed under the 1987 Constitution who served the full term of seven years can no longer be
extended a reappointment. Neither can the Commissioners first appointed for the terms of five
years and three years be eligible for reappointment. This is the plain meaning attached to the
second sentence of Sec. 1(2), Article IX(D).

On the other hand, the provision, on its face, does not prohibit a promotional appointment from
commissioner to chairman as long as the commissioner has not served the full term of seven
years, further qualified by the third sentence of Sec. 1(2), Article IX (D) that "the appointment to
any vacancy shall be only for the unexpired portion of the term of the predecessor." In addition,
such promotional appointment to the position of Chairman must conform to the rotational plan or
the staggering of terms in the commission membership such that the aggregate of the service of
the Commissioner in said position and the term to which he will be appointed to the position of
Chairman must not exceed seven years so as not to disrupt the rotational system in the
commission prescribed by Sec. 1(2), Art. IX(D).

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated
circumstances or conditions.

It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched,
allows a promotional appointment from Commissioner to Chairman. Even if We concede the
existence of an ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.33 teaches
that in case of doubt as to the import and react of a constitutional provision, resort should be
made to extraneous aids of construction, such as debates and proceedings of the Constitutional
Convention, to shed light on and ascertain the intent of the framers or the purpose of the
provision being construed.

The understanding of the Convention as to what was meant by the terms of the constitutional
provision which was the subject of the deliberation goes a long way toward explaining the
understanding of the people when they ratified it. The Court applied this principle in Civil Liberties
Union v. Executive Secretary:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was framed. The object
is to ascertain the reason which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to construe the whole as
to make the words consonant to that reason and calculated to effect that purpose.34 (Emphasis
added.)

And again in Nitafan v. Commissioner on Internal Revenue:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to ascertain
and thereafter assure the realization of the purpose of the framers and of the people in the
adoption of the Constitution. It may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the framers.35 (Emphasis added.)

Much weight and due respect must be accorded to the intent of the framers of the Constitution in
interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation where a commissioner is
upgraded to the position of chairman, the 1987 Constitution in fact unequivocally allows
promotional appointment, but subject to defined parameters. The ensuing exchanges during the
deliberations of the 1986 Constitutional Commission (CONCOM) on a draft proposal of what
would eventually be Sec. 1(2), Art. IX(D) of the present Constitution amply support the thesis that
a promotional appointment is allowed provided no one may be in the COA for an aggregate
threshold period of 7 years:

MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the
sentence which begins with "In no case," insert THE APPOINTEE SHALL IN NO CASE SERVE
AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may
approximate the situation wherein a commissioner is first appointed as chairman. I am willing to
withdraw that amendment if there is a representation on the part of the Committee that there is
an implicit intention to prohibit a term that in the aggregate will exceed more than seven years. If
that is the intention, I am willing to withdraw my amendment.

MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole there is no way somebody can serve for
more than seven years. The purpose of the last sentence is to make sure that this does not
happen by including in the appointment both temporary and acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation
wherein a commissioner is upgraded to a position of chairman. But if this provision is intended to
cover that kind of situation, then I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: "Appointment
to any vacancy shall be only for the unexpired portion of the predecessor." In other words, if
there is upgrading of position from commissioner to chairman, the appointee can serve only the
unexpired portion of the term of the predecessor.

MS. AQUINO: But we have to be very specific x x x because it might shorten the term because
he serves only the unexpired portion of the term of the predecessor.

MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired
portion of the term of the predecessor. (Emphasis added.)36

The phrase "upgrading of position" found in the underscored portion unmistakably shows that
Sec. 1(2), Art. IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not
per se preclude, in any and all cases, the promotional appointment or upgrade of a commissioner
to chairman, subject to this proviso: the appointee’s tenure in office does not exceed 7 years in
all. Indeed, such appointment does not contextually come within the restricting phrase "without
reappointment" twice written in that section. Delegate Foz even cautioned, as a matter of fact,
that a sitting commissioner accepting a promotional appointment to fill up an unexpired portion
pertaining to the higher office does so at the risk of shortening his original term. To illustrate the
Foz’s concern: assume that Carague left COA for reasons other than the expiration of his
threshold 7-year term and Villar accepted an appointment to fill up the vacancy. In this situation,
the latter can only stay at the COA and served the unexpired portion of Carague’s unexpired
term as departing COA Chairman, even if, in the process, his (Villar’s) own 7-year term as COA
commissioner has not yet come to an end. In this illustration, the inviolable regularity of the
intervals between appointments in the COA is preserved.

Moreover, jurisprudence tells us that the word "reappointment" means a second appointment to
one and the same office.37 As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent
in Visarra v. Miraflor,38 the constitutional prohibition against the reappointment of a commissioner
refers to his second appointment to the same office after holding it for nine years.39 As Justice
Dizon observed, "[T]he occupant of an office obviously needs no such second appointment
unless, for some valid cause, such as the expiration of his term or resignation, he had ceased to
be the legal occupant thereof." 40 The inevitable implication of Justice Dizon’s cogent observation
is that a promotion from commissioner to chairman, albeit entailing a second appointment,
involves a different office and, hence, not, in the strict legal viewpoint, a reappointment. Stated a
bit differently, "reappointment" refers to a movement to one and the same office. Necessarily, a
movement to a different position within the commission (from Commissioner to Chairman) would
constitute an appointment, or a second appointment, to be precise, but not reappointment.

A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo
Bautista, although he expressly alluded to a promotional appointment as not being a prohibited
appointment under Art. X of the 1935 Constitution.

Petitioner’s invocation of Matibag as additional argument to contest the constitutionality of Villar’s

elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo
appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and
Florentino Tuason as Commissioners, each for a term of office of seven (7) years. All three
immediately took their oath of, and assumed, office. These appointments were twice renewed
because the Commission on Appointments failed to act on the first two ad interim appointments.
Via a petition for prohibition, some disgruntled COMELEC officials assail as infirm the
appointments of Benipayo, et al.

Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be
specific, where the proviso "[t]he Chairman and the Commissioners shall be appointed x x x for a
term of seven years without reappointment" shall apply. Justice Antonio T. Carpio declares in his
dissent that Villar’s appointment falls under a combination of two of the four situations.

Conceding for the nonce the correctness of the premises depicted in the situations referred to in
Matibag, that case is of doubtful applicability to the instant petition. Not only is it cast against a
different milieu, but the lis mota of the case, as expressly declared in the main opinion, "is the
very constitutional issue raised by petitioner."41 And what is/are this/these issue/s? Only two
defined issues in Matibag are relevant, viz: (1) the nature of an ad interim appointment and
subsumed thereto the effect of a by-passed ad interim appointment; and (2) the constitutionality
of renewals of ad interim appointments. The opinion defined these issues in the following wise:
"Petitioner [Matibag] filed the instant petition questioning the appointment and the right to remain
in office of Benipayo, Borra and Tuason as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of Benipayo, et al. violate the
constitutional provisions on the independence of COMELEC, as well as on the prohibitions on
temporary appointments and reappointments of its Chairman and members." As may distinctly
be noted, an upgrade or promotion was not in issue in Matibag.

We shall briefly address the four adverted situations outlined in Matibag, in which, as there
urged, the uniform proviso on no reappointment––after a member of any of the three
constitutional commissions is appointed for a term of seven (7) years––shall apply. Matibag
made the following formulation:

The first situation is where an ad interim appointee after confirmation by the Commission on
Appointments serves his full 7-year term. Such person cannot be reappointed whether as a
member or as chairman because he will then be actually serving more than seven (7) years.

The second situation is where the appointee, after confirmation, serves part of his term and then
resigns before his seven-year term of office ends. Such person cannot be reappointed whether
as a member or as chair to a vacancy arising from retirement because a reappointment will result
in the appointee serving more than seven years.
The third situation is where the appointee is confirmed to serve the unexpired portion of someone
who died or resigned, and the appointee completes the unexpired term. Such person cannot be
reappointed whether as a member or as chair to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven (7) years.

The fourth situation is where the appointee has previously served a term of less than seven (7)
years, and a vacancy arises from death or resignation. Even if it will not result in his serving more
than seven years, a reappointment of such person to serve an unexpired term is also prohibited
because his situation will be similar to those appointed under the second sentence of Sec. 1(20),
Art. IX-C of the Constitution [referring to the first set of appointees (the 5 and 3 year termers)
whose term of office are less than 7 years but are barred from being reappointed under any
situation]."42 (Words in brackets and emphasis supplied.)

The situations just described constitute an obiter dictum, hence without the force of adjudication,
for the corresponding formulation of the four situations was not in any way necessary to resolve
any of the determinative issues specifically defined in Matibag. An opinion entirely unnecessary
for the decision of the case or one expressed upon a point not necessarily involved in the
determination of the case is an obiter.43

There can be no serious objection to the scenarios depicted in the first, second and third
situations, both hewing with the proposition that no one can stay in any of the three independent
commissions for an aggregate period of more than seven (7) years. The fourth situation,
however, does not commend itself for concurrence inasmuch as it is basically predicated on the
postulate that reappointment, as earlier herein defined, of any kind is prohibited under any and all
circumstances. To reiterate, the word "reappointment" means a second appointment to one and
the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar provisions do not
peremptorily prohibit the promotional appointment of a commissioner to chairman, provided the
new appointee’s tenure in both capacities does not exceed seven (7) years in all. The statements
in Matibag enunciating the ban on reappointment in the aforecited fourth situation, perforce, must
be abandoned, for, indeed, a promotional appointment from the position of Commissioner to that
of Chairman is constitutionally permissible and not barred by Sec. 1(2), Art. IX (D) of the
Constitution.

One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and
preserve the independence of COA and its members,44 citing what the dissenting Justice J.B.L
Reyes wrote in Visarra, that once appointed and confirmed, the commissioners should be free to
act as their conscience demands, without fear of retaliation or hope or reward. Pursued to its
logical conclusion, petitioner’s thesis is that a COA member may no longer act with
independence if he or she can be rewarded with a promotion or appointment, for then he or she
will do the bidding of the appointing authority in the hope of being promoted or reappointed.

The unstated reason behind Justice J.B.L. Reyes’ counsel is that independence is really a matter
of choice. Without taking anything away from the gem imparted by the eminent jurist, what Chief
Justice Moran said on the subject of independence is just as logically sound and perhaps even
more compelling, as follows:

A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or
other hope of material reward, his enthusiasm may decline as the end of his term approaches
and he may even lean to abuses if there is no higher restrain in his moral character. Moral
character is no doubt the most effective safeguard of independence. With moral integrity, a
commissioner will be independent with or without the possibility of reappointment.45

The Court is likewise unable to sustain Villar’s proposition that his promotional appointment as
COA Chairman gave him a completely fresh 7-year term––from February 2008 to February
2015––given his four (4)-year tenure as COA commissioner devalues all the past
pronouncements made by this Court, starting in De Vera, then Imperial, Visarra, and finally
Matibag. While there had been divergence of opinion as to the import of the word
"reappointment," there has been unanimity on the dictum that in no case can one be a COA
member, either as chairman or commissioner, or a mix of both positions, for an aggregate term
of more than 7 years. A contrary view would allow a circumvention of the aggregate 7-year
service limitation and would be constitutionally offensive as it would wreak havoc to the spirit of
the rotational system of succession. Imperial, passing upon the rotational system as it applied to
the then organizational set-up of the COMELEC, stated:

The provision that of the first three commissioners appointed "one shall hold office for 9 years,
another for 6 years and the third for 3 years," when taken together with the prescribed term of
office for 9 years without reappointment, evinces a deliberate plan to have a regular rotation or
cycle in the membership of the commission, by having subsequent members appointable only
once every three years.46

To be sure, Villar’s appointment as COA Chairman partakes of a promotional appointment which,

under appropriate setting, would be outside the purview of the constitutional reappointment ban
in Sec 1(2), Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term
appearing in the underlying appointment paper, ought still to be struck down as unconstitutional
for the reason as shall be explained.

Consider:

In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a
COA member shall be for a fixed 7-year term if the vacancy results from the expiration of the
term of the predecessor. We reproduce in its pertinent part the provision referred to:

(2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven
years without reappointment. x x x Appointment to any vacancy shall be only for the unexpired
portion of the term of the predecessor. x x x

Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of
less than seven (7) years is void for violating a clear, but mandatory constitutional prescription.
There can be no denying that the vacancy in the position of COA chairman when Carague
stepped down in February 2, 2008 resulted from the expiration of his 7-year term. Hence, the
appointment to the vacancy thus created ought to have been one for seven (7) years in line with
the verbal legis approach47 of interpreting the Constitution. It is to be understood, however,
following Gaminde, that in case of a belated appointment, the interval between the start of the
term and the actual appointment shall be counted against the 7-year term of the appointee.
Posing, however, as an insurmountable barrier to a full 7-year appointment for Villar is the rule
against one serving the commission for an aggregate term of more than seven (7) years.

Where the Constitution or, for that matter, a statute, has fixed the term of office of a public
official, the appointing authority is without authority to specify in the appointment a term shorter
or longer than what the law provides. If the vacancy calls for a full seven-year appointment, the
President is without discretion to extend a promotional appointment for more or for less than
seven (7) years. There is no in between. He or she cannot split terms. It is not within the power of
the appointing authority to override the positive provision of the Constitution which dictates that
the term of office of members of constitutional bodies shall be seven (7) years.48 A contrary
reasoning "would make the term of office to depend upon the pleasure or caprice of the
[appointing authority] and not upon the will [of the framers of the Constitution] of the legislature
as expressed in plain and undoubted language in the law."49

In net effect, then President Macapagal-Arroyo could not have had, under any circumstance,
validly appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution
decrees, was not legally feasible in light of the 7-year aggregate rule. Villar had already served 4
years of his 7-year term as COA Commissioner. A shorter term, however, to comply with said
rule would also be invalid as the corresponding appointment would effectively breach the clear
purpose of the Constitution of giving to every appointee so appointed subsequent to the first set
of commissioners, a fixed term of office of 7 years. To recapitulate, a COA commissioner like
respondent Villar who serves for a period less than seven (7) years cannot be appointed as
chairman when such position became vacant as a result of the expiration of the 7-year term of
the predecessor (Carague). Such appointment to a full term is not valid and constitutional, as the
appointee will be allowed to serve more than seven (7) years under the constitutional ban.

On the other hand, a commissioner who resigned before serving his 7- year term can be
extended an appointment to the position of chairman for the unexpired period of the term of the
latter, provided the aggregate of the period he served as commissioner and the period he will
serve as chairman will not exceed seven (7) years. This situation will only obtain when the
chairman leaves the office by reason of death, disability, resignation or impeachment. Let us
consider, in the concrete, the situation of then Chairman Carague and his successor, Villar.
Carague was appointed COA Chairman effective February 2, 2001 for a term of seven (7) years,
or up to February 2, 2008. Villar was appointed as Commissioner on February 2, 2004 with a 7-
year term to end on February 2, 2011. If Carague for some reason vacated the chairmanship in
2007, then Villar can resign as commissioner in the same year and later be appointed as
chairman to serve only up to February 2, 2008, the end of the unexpired portion of Carague’s
term. In this hypothetical scenario, Villar’s appointment to the position of chairman is valid and
constitutional as the aggregate periods of his two (2) appointments will only be five (5) years
which neither distorts the rotational scheme nor violates the rule that the sum total of said
appointments shall not exceed seven (7) years. Villar would, however, forfeit two (2) years of his
original seven (7)-year term as Commissioner, since, by accepting an upgraded appointment to
Carague’s position, he agreed to serve the unexpired portion of the term of the predecessor. As
illustrated earlier, following Mr. Foz’s line, if there is an upgrading of position from commissioner
to chairman, the appointee takes the risk of cutting short his original term, knowing pretty well
before hand that he will serve only the unexpired portion of the term of his predecessor, the
outgoing COA chairman.

In the extreme hypothetical situation that Villar vacates the position of chairman for causes other
than the expiration of the original term of Carague, the President can only appoint the successor
of Villar for the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the
Constitution. Upon the expiration of the original 7-year term of Carague, the President can
appoint a new chairman for a term of seven (7) full years.

In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to
the view that the promotional appointment of a sitting commissioner is plausible only when he is
appointed to the position of chairman for the unexpired portion of the term of said official who
leaves the office by reason of any the following reasons: death, disability, resignation or
impeachment, not when the vacancy arises out as a result of the expiration of the 7-year term of
the past chairman. There is nothing in the Constitution, so Justice Mendoza counters, that
restricts the promotion of an incumbent commissioner to the chairmanship only in instances
where the tenure of his predecessor was cut short by any of the four events referred to. As
earlier explained, the majority view springs from the interplay of the following premises: The
explicit command of the Constitution is that the "Chairman and the Commissioners shall be
appointed by the President x x x for a term of seven years [and] appointment to any vacancy
shall be only for the unexpired portion of the term of the predecessor." To repeat, the President
has two and only two options on term appointments. Either he extends an appointment for a full
7-year term when the vacancy results from the expiration of term, or for a shorter period
corresponding to the unexpired term of the predecessor when the vacancy occurs by reason of
death, physical disability, resignation or impeachment. If the vacancy calls for a full seven-year
appointment, the Chief Executive is barred from extending a promotional appointment for less
than seven years. Else, the President can trifle with terms of office fixed by the Constitution.

Justice Mendoza likewise invites attention to an instance in history when a commissioner had
been promoted chairman after the expiration of the term of his predecessor, referring specifically
to the appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P.
Carag after the expiration of the latter’s term in 1959 as COMELEC chairman. Such appointment
to the position of chairman is not constitutionally permissible under the 1987 Constitution
because of the policy and intent of its framers that a COA member who has served his full term
of seven (7) years or even for a shorter period can no longer be extended another appointment
to the position of chairman for a full term of seven (7) years. As revealed in the deliberations of
the Constitutional Commission that crafted the 1987 Constitution, a member of COA who also
served as a commissioner for less than seven (7) years in said position cannot be appointed to
the position of chairman for a full term of seven (7) years since the aggregate will exceed seven
(7) years. Thus, the adverted Garcia appointment in 1959 made under the 1935 Constitution
cannot be used as a precedent to an appointment of such nature under the 1987 Constitution.
The dissent further notes that the upgrading remained uncontested. In this regard, suffice it to
state that the promotion in question was either legal or it was not. If it were not, no amount of
repetitive practices would clear it of invalidating taint.

Lastly, Villar’s appointment as chairman ending February 2, 2011 which Justice Mendoza
considers as valid is likewise unconstitutional, as it will destroy the rationale and policy behind
the rotational system or the staggering of appointments and terms in COA as prescribed in the
Constitution. It disturbs in a way the staggered rotational system of appointment under Sec. 1(2),
Art. IX(D) of the 1987 Constitution. Consider: If Villar’s term as COA chairman up to February 2,
2011 is viewed as valid and constitutional as espoused by my esteemed colleague, then two
vacancies have simultaneously occurred and two (2) COA members going out of office at once,
opening positions for two (2) appointables on that date as Commissioner San Buenaventura’s
term also expired on that day. This is precisely one of the mischiefs the staggering of terms and
the regular intervals appointments seek to address. Note that San Buenaventura was specifically
appointed to succeed Villar as commissioner, meaning she merely occupied the position vacated
by her predecessor whose term as such commissioner expired on February 2, 2011. The result
is what the framers of the Constitution doubtless sought to avoid, a sitting President with a 6-year
term of office, like President Benigno C. Aquino III, appointing all or at least two (2) members of
the three-man Commission during his term. He appointed Ma. Gracia Pulido-Tan as Chairman
for the term ending February 2, 2015 upon the relinquishment of the post by respondent Villar,
and Heidi Mendoza was appointed Commissioner for a 7-year term ending February 2, 2018 to
replace San Buenaventura. If Justice Mendoza’s version is adopted, then situations like the one
which obtains in the Commission will definitely be replicated in gross breach of the Constitution
and in clear contravention of the intent of its framers. Presidents in the future can easily control
the Commission depriving it of its independence and impartiality.

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:

1. The appointment of members of any of the three constitutional commissions, after the
expiration of the uneven terms of office of the first set of commissioners, shall always be
for a fixed term of seven (7) years; an appointment for a lesser period is void and
unconstitutional.

The appointing authority cannot validly shorten the full term of seven (7) years in case of
the expiration of the term as this will result in the distortion of the rotational system
prescribed by the Constitution.

2. Appointments to vacancies resulting from certain causes (death, resignation, disability

or impeachment) shall only be for the unexpired portion of the term of the predecessor,
but such appointments cannot be less than the unexpired portion as this will likewise
disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D).

3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a
full term of seven years and who served the entire period, are barred from reappointment
 to any position in the Commission. Corollarily, the first appointees in the Commission
under the Constitution are also covered by the prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less than seven years
is eligible for an appointment to the position of Chairman for the unexpired portion of the
term of the departing chairman. Such appointment is not covered by the ban on
reappointment, provided that the aggregate period of the length of service as
commissioner and the unexpired period of the term of the predecessor will not exceed
seven (7) years and provided further that the vacancy in the position of Chairman
resulted from death, resignation, disability or removal by impeachment. The Court
clarifies that "reappointment" found in Sec. 1(2), Art. IX(D) means a movement to one
and the same office (Commissioner to Commissioner or Chairman to Chairman). On the
other hand, an appointment involving a movement to a different position or office
(Commissioner to Chairman) would constitute a new appointment and, hence, not, in the
strict legal sense, a reappointment barred under the Constitution.

5. Any member of the Commission cannot be appointed or designated in a temporary or

acting capacity.

WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner

Reynaldo A. Villar to the position of Chairman of the Commission on Audit to replace Guillermo
N. Carague, whose term of office as such chairman has expired, is hereby declared
UNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D) of the Constitution.

SO ORDERED.

Section 2

EN BANC

G.R. No. 213330, November 16, 2015

ALELI C. ALMADOVAR, GENERAL MANAGER ISAWAD, ISABELA CITY,

BASILAN PROVINCE, Petitioner, v. CHAIRPERSON MA. GRACIA M. PULIDO-
TAN, COMMISSION ON AUDIT, Respondent.

DECISION

MENDOZA, J.:

This is a petition for certiorari under Rule 64 of the Revised Rules of Court seeking to
reverse and set aside the December 29, 2011 Decision1 of the Commission on Audit
(COA) and the April 4, 2014 Resolution2 of the COA En Bane which affirmed the
October 28, 2010 Decision3 of the COA Regional Office No. IX (COA Regional
Office) regarding Notices of Disallowances (NDs).

Isabela Water District (ISAWAD) is a government owned and controlled corporation

(GOCC) created pursuant to the provisions of Presidential Decree (P.D.) No. 198, or
the "Provincial Water Utilities Act of 1973" (PWUA), as amended by Republic Act
(R.A.) No. 9286.4 Aleli G. Almadovar (petitioner) is the General Manager (GM) of
ISAWAD.5

On January 25, 2007, Catalino S. Genel (Genel), Audit Team Leader for ISAWAD,
Isabela City, issued the following NDs for ISAWAD's various payments:6 chanroblesvi rt uallawl ibra ry
 ND No. Particulars Amount

2006-001 Payment of salary increase for the GM, ISAWAD, from

(2005)7 P20,823.00 to P35,574-00 per month, from August to P73,755.00
December, 2005, without legal basis.

2006- Payment of legal retainer's fee at P4,000.00 per month for the
002(2005)8 period from of January to December 2005 without proper
P48,000.00
authority from the Office of the Government Corporate
Counsel (OGCC) and the written concurrence of the COA.

2006- Payment of honorarium to OGCC Lawyer without express

003(2005)9 authority from the OGCC, and proof of service rendered to the P24,000.00
ISAWAD

2006- Payment of Representation and Transportation Allowances

10
004(2005) (RATA) to the GM, ISAWAD over and above the authorized
rate of the Department of Budget and Management (DBM) P6,000.00
under Corporate Budget Circular (CBC) No. 18 and National
Budget Circular (NBC) No. 498
cralawlawl ibra ry

On April 26, 2007, petitioner filed an appeal with the Regional Cluster Director,
Cluster Ill-Public Utilities, Corporation Government Sector, which was indorsed to the
COA Regional Office. Petitioner insisted that the increase in her salary and her RATA
was in accordance with R.A. No. 9286, or the law which amended the PWUA.11

Petitioner further claimed that the engagement of a private counsel, Atty. Quirino
Esguerra Jr. (Atty. Esguerra), and the designation of OGCC lawyer, Atty. Fortunato
G. Operario Jr. (Atty. Operario), were in accordance with the procedure set forth by
law. Consequently, the payments made to them were appropriate.12

The COA Regional Office Ruling

On October 28, 2010, the COA Regional Office rendered a decision affirming with
modification the assailed NDs. It explained that the compensation of the GMs of local
water districts (LWDs) was still subject to the provisions of R.A. No. 6758, or the
Salary Standardization Law (SSL). Thus, it found that the increase in petitioner's
salary was improper as it ran afoul with the provisions of R.A. No. 6758. It also
agreed that the disallowance of petitioner's RATA was correct because it exceeded
the allowable RATA for her position pursuant to CBC No. 18,13 dated April 1, 2005,
and NBC No. 498,14 dated November 14, 2000.

The COA Regional Office also agreed that the payment of honoraria to Atty. Operario
had no basis because it constituted an unnecessary and excessive expenditure. The
disallowed amount in ND No. 2006-002(2005), was reduced from P48,000.00 to
P40,000.00 because Atty. Esguerra's services from November to December 2005
were covered by a retainership contract duly approved by the OGCC and with the
written concurrence of the COA.

The case was automatically elevated for review to the COA pursuant to Section 7,
Rule V of the 2009 Revised Rules of Procedures of the COA.
The COA Ruling

On December 29, 2011, the COA rendered the assailed decision affirming the ruling
of the COA Regional Office. It stressed that before a private lawyer may be hired by
the GOCC, the written conformity of the OGCC and the written concurrence of the
COA must first be secured -which also applied in cases of contract renewal. The COA
ruled that the payments to Atty. Esguerra from January to October 2005 were
improper because his services were retained without the necessary conformity and
concurrence of both the OGCC and the COA. Only the retainership contract for a
period of one year effective on November 1, 2005 was with the conformity and
concurrence of both the OGCC and the COA.

Aggrieved, petitioner moved for reconsideration of the decision but her motion was
denied by the COA En Banc in its assailed resolution, dated April 4, 2014.

Hence, this present petition.

ISSUES

1] Whether or not the disbursements under the NDs were improper.

2] In the event the disbursements were improper, whether or not petitioner

liable to refund the same.

Petitioner insists that her salary increase was proper because LWDs were exempt
from the coverage of the SSL as Section 23 of R.A. No. 9286, a later law,
empowered the board of directors of LWDs to fix the salary of its GM, thereby
impliedly repealing R.A. No. 6758; that her salary was within the scale provided by
the Office of the Philippine Association of Water Districts, Inc.; and that she need not
refund the alleged overpaid RATA because she acted in good faith as she stopped
claiming the same after the NDs were issued.15

Petitioner also claims that the payments to Atty. Esguerra from January to October
2005 were valid because the OGCC concurred with the retainership contract for one
year effective from November 1, 2004. She faults the COA for belatedly acting upon
the request for conformity. Likewise, petitioner posits that the written concurrence
of the COA only applies to the engagement or hiring of a private lawyer and not the
renewal of the retainership. She argues that the retainership of Atty. Esguerra had
been effected on a yearly basis starting November 1, 2003, which necessarily follows
that subsequent renewal should be in November of the succeeding year.16

Petitioner also faults the OGCC for the delay in issuing the necessary authority for
Atty. Operario, baring that as early as 2004 the board of directors of ISAWAD
already requested from the OGCC the necessary authority, but it was given only on
July 11, 2006. She avers that denying the lawyers the remuneration for their
services will be tantamount to unjust enrichment.17

Citing Mendoza v. COA18 (Mendoza), petitioner claims that she acted in good faith in
making all the disbursements and, therefore, she should not be made to refund
them because they were given under an honest belief that the payees were entitled
to the said remunerations and these were in consideration for their services
rendered. Petitioner likewise prays for the issuance of a Writ of Preliminary
Injunction and/or TRO because she stands to suffer grave injustice and great
irreparable injury.
In its Comment,19 dated July 28, 2014, the COA countered that LWDs were covered
by R.A. No. 6758 or the SSL. R.A. No. 9286 did not expressly repeal it, and an
implied repeal, as claimed by petitioner, was disfavored by law.

The COA also contended that the renewal of retainership contracts required the
written concurrence of the COA. It is also insisted that the payments of honorarium
made to Atty. Operario were improper because at the time he rendered his services,
the OGCC had yet to issue any authority. It noted that the OGCC approval and the
COA concurrence were required to ensure that there was basis for the engagement
of a private lawyer.

The COA argued that petitioner could not claim good faith because the case cited by
her, allowing the defense of good faith, was premised on the fact that there was no
prior case or rule that settled the applicability of R.A. No. 6758 to LWDs. Finally, the
COA opined that petitioner failed to state factual allegations to support the issuance
of a writ of Preliminary Injunction and/or TRO.

In her Reply,20 dated March 13, 2015, petitioner merely reiterated her previous
arguments.

The Court's Ruling

R.A. No. 6758 covers local water districts

The increase in the salary of the petitioner was correctly disallowed because it
contravened the provisions of the SSL. In Mendoza,21 the Court ruled that the
salaries of GMs of LWDs were subject to the provision of the SSL, to wit: chanRoblesvirt ual Lawlib rary

The Salary Standardization Law applies to all government positions, including those
in government-owned or controlled corporations, without qualification. The
exception to this rule is when the government-owned or controlled
corporation's charter specifically exempts the corporation from the
coverage of the Salary Standardization Law. xxx

We are not convinced that Section 23 of Presidential Decree No. 198, as

amended, or any of its provisions, exempts water utilities from the
coverage of the Salary Standardization Law. In statutes subsequent to Republic
Act No. 6758, Congress consistently provided not only for the power to fix
compensation but also the agency's or corporation's exemption from the Salary
Standardization Law. If Congress had intended to exempt water utilities from the
coverage of the Salary Standardization Law and other laws on compensation and
position classification, it could have expressly provided in Presidential Decree No.
198 an exemption clause similar to those provided in the respective charters of the
Philippine Postal Corporation, Trade Investment and Development Corporation, Land
Bank of the Philippines, Social Security System, Small Business Guarantee and
Finance Corporation, Government Service Insurance System, Development Bank of
the Philippines, Home Guaranty Corporation, and the Philippine Deposit Insurance
Corporation.

Congress could have amended Section 23 of Presidential Decree No. 198 to

expressly provide that the compensation of a general manager is exempted from the
Salary Standardization Law. However, Congress did not. Section 23 was amended to
emphasize that the general manager "shall not be removed from office, except for
cause and after due process."

This does not mean that water utilities cannot fix the compensation of their
respective general managers. Section 23 of Presidential Decree No. 198 clearly
provides that a water utility's board of directors has the power to define the duties
and fix the compensation of a general manager. However, the compensation
fixed must be in accordance with the position classification system under
the Salary Standardization Law. xxx22

[Emphases Supplied] cralawlawlib rary

Petitioner claims that R.A. No. 9286, being a later law, repealed the SSL. The Court,
however, notes that R.A. No. 9286 did not expressly repeal the SSL. Neither did R.A.
No. 9286 impliedly repeal the SSL because repeal by implication is not favored by
law and is only resorted to in case of irreconcilable inconsistency and repugnancy
between the new law and the old law.23 As clearly pointed out in Mendoza, there is
no irreconcilable inconsistency between R.A. No. 9286 and the SSL. It is conceded
though that the board of directors has full discretion in fixing the salary of the GM,
but it is always subject to the limits under the SSL, unless the charter of the LWD
exempts it from the coverage of the said law.

Engagements ofAtty. Esguerra

and Atty. Operario were unauthorized

COA Circular No. 95-011, dated December 4, 1995, provides that in the event that
the need for the legal services of a private lawyer cannot be avoided or is justified
under extraordinary or exceptional circumstances, the written conformity and
acquiescence of the OGCC and the written concurrence of the COA shall first be
secured. The failure to secure the written concurrence makes the engagement of the
private lawyer or law firm unauthorized.24

In the case at bench, petitioner does not deny that there was no written concurrence
from the COA when Atty. Esguerra, a private lawyer, rendered legal services from
January to October 2005. She, instead, argues that it is not mandatory to secure the
written concurrence of COA because it only applies to the hiring or employment of a
lawyer and not the renewal of a retainership contract. Further, petitioner blames the
COA because it belatedly acted on the request of ISAWAD for a written concurrence.

The arguments of petitioner fail to persuade.

ISAWAD first engaged Atty. Esguerra under a retainership contract25 for a period of
one year effective November 1, 2003, with the written concurrence of the OGCC and
the COA. The following year, another retainership contract26 was executed, effective
one year from November 1, 2004, with the concurrence of the OGCC but not the
COA. Again, in the following year, a retainership contract27 was executed for another
one year effective on November 1, 2005, with the written concurrence of both the
OGCC and the COA.

ISAWAD engaged Atty. Esguerra under a general retainer for a specific length of
time, which was regularly renewed after its termination. Each renewal constituted
the hiring of Atty. Esguerra because after the lapse of one year, the engagement
was terminated; and each renewal for another one-year term required the written
conformity of the COA.
Petitioner likewise faults the COA for failing to act on time on the request for
concurrence. This, however, is a bare assertion as petitioner failed to provide any
document showing that a request for the COA's written concurrence was even made.
Petitioner only presented the OGCC's written approval,28 dated September 5, 2005,
of the retainership contract effective November 1, 2004. The letter significantly
reminded ISAWAD to seek the conformity of the COA - which it failed to do.

With regard to Atty. Operario, Executive Order (E.O.) No. 878, series of 1983, allows
any member of the OGCC's legal staff to be designated in a concurrent capacity to
act as a corporate officer of the GOCC being serviced by the OGCC when the
exigency of the service so requires, provided that the Government Corporate
Counsel approves the designation.

Petitioner admits that it was only on July 11, 2006 that the authority of Atty.
Operaria to render services for ISAWAD was issued. Obviously, he had no authority
to provide legal services to ISAWAD prior to the approval of the OGCC.
Consequently, Atty. Operario was not entitled to the honorarium given for the
alleged services he had rendered.

Petitioner cannot argue that disallowing the payments made to Atty. Esguerra and
Atty. Operario is tantamount to unjust enrichment. In The Law Firm of Laguesma
Magsalin Consulta and Gastardo v. COA,29 the Court, notwithstanding the fact that
actual services had been rendered, upheld the disallowance of payment made to a
law firm, which was unauthorized to act in behalf of a GOCC, for failure to secure the
COA's concurrence. In the case at bench, there is no unjust enrichment because the
NDs directed the responsible officers of ISAWAD, who made the disbursements
(including petitioner), and not the lawyers engaged, to make the refund.

Refund not necessary if the

disbursements were made
in good faith

In Mendoza, the Court excused the erring officials therein from refunding the
amounts subject of the ND, to wit: chanRoblesvi rtua lLawl ibra ry

The salaries petitioner Mendoza received were fixed by the Talisay Water District's
board of directors pursuant to Section 23 of the Presidential Decree No. 198.
Petitioner Mendoza had no hand in fixing the amount of compensation he received.
Moreover, at the time petitioner Mendoza received the disputed amount in 2005 and
2006, there was no jurisprudence yet ruling that water utilities are not exempted
from the Salary Standardization Law.

Pursuant to de Jesus v. Commission on Audit, petitioner Mendoza received the

disallowed salaries in good faith. He need not refund the disallowed amount. cralawlawlibra ry

In this case, the Court is of the view that the payment of the erroneous increase in
petitioner's salary was nonetheless made in good faith. The increase was computed
in accordance with the scale provided by the Office of the Philippine Association of
Water Districts, Inc., which also made an erroneous opinion that R.A. No. 9286
repealed the SSL. Further, at the time the disbursement was made, no categorical
pronouncement, similar to Mendoza, that the LWDs are subject to the provisions of
the SSL, had been issued.

Good faith, however, cannot be appreciated in petitioner's other disbursements.

Petitioner knowingly approved the payments to Atty. Esguerra and Atty. Operaria in
spite of the lack of the necessary approval by the government offices concerned.
Further, petitioner's failure to claim her excessive RATA after the NDs were issued
does not evince good faith because, at that time, CBC No. 18 and NBC No. 498
already provided for the allowable RATA to be given to GMs of LWDs.

No basis for the issuance of a writ of injunction

In Calawag v. University of the Philippines Visayas,30 the Court ruled that the right
sought to be protected must not be doubtful in order for an injunctive relief to be
issued, to wit: chanRoblesvirtual Lawlib ra ry

To be entitled to a writ of preliminary injunction, xxx the petitioners must establish

the following requisites: (a) the invasion of the right sought to be protected is
material and substantial; (b) the right of the complainant is clear and unmistakable;
and (c) there is an urgent and permanent necessity for the writ to prevent serious
damage, xxx When the complainant's right is thus doubtful or disputed, he
does not have a clear legal right and, therefore, the issuance of injunctive
relief is improper.

[Emphasis supplied]
cralawlawl ibra ry

Here, petitioner failed to show sufficient reasons to justify the issuance of the
injunctive relief. It has been thoroughly discussed that the disbursements were
without legal basis as they either were in excess of the limits provided for by law or
were issued without authority.

WHEREFORE, the December 29, 2011 Decision of the Commission on Audit

is AFFIRMED with MODIFICATION in that petitioner be absolved from refunding
the amount paid in the increase of her salary.

ALMADOVAR VS. COA

Good Law

EN BANC G.R. No. 213330, November 16, 2015 ALELI C. ALMADOVAR, GENERAL
MANAGER ISAWAD, ISABELA CITY, BASILAN PROVINCE, PETITIONER, VS.
CHAIRPERSON MA. GRACIA M. PULIDO-TAN, COMMISSION ON AUDIT,
RESPONDENT.

DECISION

MENDOZA, J.:

This is a petition for certiorari under Rule 64 of the Revised Rules of Court seeking to reverse
and set aside the December 29, 2011 Decision[1] of the Commission on Audit (COA) and the
April 4, 2014 Resolution[2] of the COA En Bane which affirmed the October 28, 2010
Decision[3] of the COA Regional Office No. IX (COA Regional Office) regarding Notices of
Disallowances (NDs).
Isabela Water District (ISAWAD) is a government owned and controlled corporation (GOCC)
created pursuant to the provisions of Presidential Decree (P.D.) No. 198, or the "Provincial
Water Utilities Act of 1973" (PWUA), as amended by Republic Act (R.A.) No. 9286.[4] Aleli G.
Almadovar (petitioner) is the General Manager (GM) of ISAWAD.[5]

On January 25, 2007, Catalino S. Genel (Genel), Audit Team Leader for ISAWAD, Isabela City,
issued the following NDs for ISAWAD's various payments:[6]

ND No. Particulars

2006-001 Payment of salary increase for the GM, ISAWAD, from P20,823.00 to P35,574-00 per month, from Au
(2005)[7] basis.

2006- Payment of legal retainer's fee at P4,000.00 per month for the period from of January to December 2
002(2005)[8] Office of the Government Corporate Counsel (OGCC) and the written concurrence of the COA.

2006- Payment of honorarium to OGCC Lawyer without express authority from the OGCC, and proof of serv
003(2005)[9]

2006- Payment of Representation and Transportation Allowances (RATA) to the GM, ISAWAD over and abo
004(2005)[10] of Budget and Management (DBM) under Corporate Budget Circular (CBC) No. 18 and National Budg

On April 26, 2007, petitioner filed an appeal with the Regional Cluster Director, Cluster Ill-
Public Utilities, Corporation Government Sector, which was indorsed to the COA Regional
Office. Petitioner insisted that the increase in her salary and her RATA was in accordance with
R.A. No. 9286, or the law which amended the PWUA.[11]

Petitioner further claimed that the engagement of a private counsel, Atty. Quirino Esguerra
Jr. (Atty. Esguerra), and the designation of OGCC lawyer, Atty. Fortunato G. Operario Jr. (Atty.
Operario), were in accordance with the procedure set forth by law. Consequently, the
payments made to them were appropriate.[12]

The COA Regional Office Ruling

On October 28, 2010, the COA Regional Office rendered a decision affirming with
modification the assailed NDs. It explained that the compensation of the GMs of local water
districts (LWDs) was still subject to the provisions of R.A. No. 6758, or the Salary
Standardization Law (SSL). Thus, it found that the increase in petitioner's salary was improper
as it ran afoul with the provisions of R.A. No. 6758. It also agreed that the disallowance of
petitioner's RATA was correct because it exceeded the allowable RATA for her position
pursuant to CBC No. 18,[13] dated April 1, 2005, and NBC No. 498,[14] dated November 14,
2000.
The COA Regional Office also agreed that the payment of honoraria to Atty. Operario had no
basis because it constituted an unnecessary and excessive expenditure. The disallowed
amount in ND No. 2006-002(2005), was reduced from P48,000.00 to P40,000.00 because
Atty. Esguerra's services from November to December 2005 were covered by a retainership
contract duly approved by the OGCC and with the written concurrence of the COA.

The case was automatically elevated for review to the COA pursuant to Section 7, Rule V of
the 2009 Revised Rules of Procedures of the COA.

The COA Ruling

On December 29, 2011, the COA rendered the assailed decision affirming the ruling of the
COA Regional Office. It stressed that before a private lawyer may be hired by the GOCC, the
written conformity of the OGCC and the written concurrence of the COA must first be
secured -which also applied in cases of contract renewal. The COA ruled that the payments
to Atty. Esguerra from January to October 2005 were improper because his services were
retained without the necessary conformity and concurrence of both the OGCC and the COA.
Only the retainership contract for a period of one year effective on November 1, 2005 was
with the conformity and concurrence of both the OGCC and the COA.

Aggrieved, petitioner moved for reconsideration of the decision but her motion was denied
by the COA En Banc in its assailed resolution, dated April 4, 2014.

Hence, this present petition.

ISSUES

1] Whether or not the disbursements under the NDs were improper.

2] In the event the disbursements were improper, whether or not petitioner liable to
refund the same.

Petitioner insists that her salary increase was proper because LWDs were exempt from the
coverage of the SSL as Section 23 of R.A. No. 9286, a later law, empowered the board of
directors of LWDs to fix the salary of its GM, thereby impliedly repealing R.A. No. 6758; that
her salary was within the scale provided by the Office of the Philippine Association of Water
Districts, Inc.; and that she need not refund the alleged overpaid RATA because she acted in
good faith as she stopped claiming the same after the NDs were issued.[15]

Petitioner also claims that the payments to Atty. Esguerra from January to October 2005
were valid because the OGCC concurred with the retainership contract for one year effective
from November 1, 2004. She faults the COA for belatedly acting upon the request for
conformity. Likewise, petitioner posits that the written concurrence of the COA only applies
to the engagement or hiring of a private lawyer and not the renewal of the retainership. She
argues that the retainership of Atty. Esguerra had been effected on a yearly basis starting
November 1, 2003, which necessarily follows that subsequent renewal should be in
November of the succeeding year.[16]

Petitioner also faults the OGCC for the delay in issuing the necessary authority for Atty.
Operario, baring that as early as 2004 the board of directors of ISAWAD already requested
from the OGCC the necessary authority, but it was given only on July 11, 2006. She avers that
denying the lawyers the remuneration for their services will be tantamount to unjust
enrichment.[17]

Citing Mendoza v. COA[18] (Mendoza), petitioner claims that she acted in good faith in making
all the disbursements and, therefore, she should not be made to refund them because they
were given under an honest belief that the payees were entitled to the said remunerations
and these were in consideration for their services rendered. Petitioner likewise prays for the
issuance of a Writ of Preliminary Injunction and/or TRO because she stands to suffer grave
injustice and great irreparable injury.

In its Comment,[19] dated July 28, 2014, the COA countered that LWDs were covered by R.A.
No. 6758 or the SSL. R.A. No. 9286 did not expressly repeal it, and an implied repeal, as
claimed by petitioner, was disfavored by law.

The COA also contended that the renewal of retainership contracts required the written
concurrence of the COA. It is also insisted that the payments of honorarium made to Atty.
Operario were improper because at the time he rendered his services, the OGCC had yet to
issue any authority. It noted that the OGCC approval and the COA concurrence were
required to ensure that there was basis for the engagement of a private lawyer.

The COA argued that petitioner could not claim good faith because the case cited by her,
allowing the defense of good faith, was premised on the fact that there was no prior case or
rule that settled the applicability of R.A. No. 6758 to LWDs. Finally, the COA opined that
petitioner failed to state factual allegations to support the issuance of a writ of
Preliminary Injunction and/or TRO.

In her Reply,[20] dated March 13, 2015, petitioner merely reiterated her previous arguments.

The Court's Ruling

R.A. No. 6758 covers local water districts

The increase in the salary of the petitioner was correctly disallowed because it contravened
the provisions of the SSL. In Mendoza,[21] the Court ruled that the salaries of GMs of LWDs
were subject to the provision of the SSL, to wit:
The Salary Standardization Law applies to all government positions, including those in
government-owned or controlled corporations, without qualification. The exception to this
rule is when the government-owned or controlled corporation's charter specifically
exempts the corporation from the coverage of the Salary Standardization Law. xxx

We are not convinced that Section 23 of Presidential Decree No. 198, as amended, or
any of its provisions, exempts water utilities from the coverage of the Salary
Standardization Law. In statutes subsequent to Republic Act No. 6758, Congress consistently
provided not only for the power to fix compensation but also the agency's or corporation's
exemption from the Salary Standardization Law. If Congress had intended to exempt water
utilities from the coverage of the Salary Standardization Law and other laws on compensation
and position classification, it could have expressly provided in Presidential Decree No. 198 an
exemption clause similar to those provided in the respective charters of the Philippine Postal
Corporation, Trade Investment and Development Corporation, Land Bank of the Philippines,
Social Security System, Small Business Guarantee and Finance Corporation, Government
Service Insurance System, Development Bank of the Philippines, Home Guaranty Corporation,
and the Philippine Deposit Insurance Corporation.

Congress could have amended Section 23 of Presidential Decree No. 198 to expressly provide
that the compensation of a general manager is exempted from the Salary Standardization Law.
However, Congress did not. Section 23 was amended to emphasize that the general manager
"shall not be removed from office, except for cause and after due process."

This does not mean that water utilities cannot fix the compensation of their respective
general managers. Section 23 of Presidential Decree No. 198 clearly provides that a water
utility's board of directors has the power to define the duties and fix the compensation of a
general manager. However, the compensation fixed must be in accordance with the
position classification system under the Salary Standardization Law. xxx[22]

[Emphases Supplied]

Petitioner claims that R.A. No. 9286, being a later law, repealed the SSL. The Court, however,
notes that R.A. No. 9286 did not expressly repeal the SSL. Neither did R.A. No. 9286 impliedly
repeal the SSL because repeal by implication is not favored by law and is only resorted to in
case of irreconcilable inconsistency and repugnancy between the new law and the old
law.[23] As clearly pointed out in Mendoza, there is no irreconcilable inconsistency between
R.A. No. 9286 and the SSL. It is conceded though that the board of directors has full
discretion in fixing the salary of the GM, but it is always subject to the limits under the SSL,
unless the charter of the LWD exempts it from the coverage of the said law.

Engagements ofAtty. Esguerra

and Atty. Operario were unauthorized

COA Circular No. 95-011, dated December 4, 1995, provides that in the event that the need
for the legal services of a private lawyer cannot be avoided or is justified under extraordinary
or exceptional circumstances, the written conformity and acquiescence of the OGCC and the
written concurrence of the COA shall first be secured. The failure to secure the written
concurrence makes the engagement of the private lawyer or law firm unauthorized.[24]

In the case at bench, petitioner does not deny that there was no written concurrence from
the COA when Atty. Esguerra, a private lawyer, rendered legal services from January to
October 2005. She, instead, argues that it is not mandatory to secure the written concurrence
of COA because it only applies to the hiring or employment of a lawyer and not the renewal
of a retainership contract. Further, petitioner blames the COA because it belatedly acted on
the request of ISAWAD for a written concurrence.

The arguments of petitioner fail to persuade.

ISAWAD first engaged Atty. Esguerra under a retainership contract[25] for a period of one year
effective November 1, 2003, with the written concurrence of the OGCC and the COA. The
following year, another retainership contract[26] was executed, effective one year from
November 1, 2004, with the concurrence of the OGCC but not the COA. Again, in the
following year, a retainership contract[27] was executed for another one year effective on
November 1, 2005, with the written concurrence of both the OGCC and the COA.

ISAWAD engaged Atty. Esguerra under a general retainer for a specific length of time, which
was regularly renewed after its termination. Each renewal constituted the hiring of Atty.
Esguerra because after the lapse of one year, the engagement was terminated; and each
renewal for another one-year term required the written conformity of the COA.

Petitioner likewise faults the COA for failing to act on time on the request for concurrence.
This, however, is a bare assertion as petitioner failed to provide any document showing that
a request for the COA's written concurrence was even made. Petitioner only presented the
OGCC's written approval,[28] dated September 5, 2005, of the retainership contract effective
November 1, 2004. The letter significantly reminded ISAWAD to seek the conformity of the
COA - which it failed to do.

With regard to Atty. Operario, Executive Order (E.O.) No. 878, series of 1983, allows any
member of the OGCC's legal staff to be designated in a concurrent capacity to act as a
corporate officer of the GOCC being serviced by the OGCC when the exigency of the service
so requires, provided that the Government Corporate Counsel approves the designation.

Petitioner admits that it was only on July 11, 2006 that the authority of Atty. Operaria to
render services for ISAWAD was issued. Obviously, he had no authority to provide legal
services to ISAWAD prior to the approval of the OGCC. Consequently, Atty. Operario was not
entitled to the honorarium given for the alleged services he had rendered.

Petitioner cannot argue that disallowing the payments made to Atty. Esguerra and Atty.
Operario is tantamount to unjust enrichment. In The Law Firm of Laguesma Magsalin
Consulta and Gastardo v. COA,[29] the Court, notwithstanding the fact that actual services had
been rendered, upheld the disallowance of payment made to a law firm, which was
unauthorized to act in behalf of a GOCC, for failure to secure the COA's concurrence. In the
case at bench, there is no unjust enrichment because the NDs directed the responsible
officers of ISAWAD, who made the disbursements (including petitioner), and not the lawyers
engaged, to make the refund.

Refund not necessary if the

disbursements were made
in good faith

In Mendoza, the Court excused the erring officials therein from refunding the amounts
subject of the ND, to wit:

The salaries petitioner Mendoza received were fixed by the Talisay Water District's board of
directors pursuant to Section 23 of the Presidential Decree No. 198. Petitioner Mendoza had no
hand in fixing the amount of compensation he received. Moreover, at the time petitioner
Mendoza received the disputed amount in 2005 and 2006, there was no jurisprudence yet
ruling that water utilities are not exempted from the Salary Standardization Law.

Pursuant to de Jesus v. Commission on Audit, petitioner Mendoza received the disallowed

salaries in good faith. He need not refund the disallowed amount.

In this case, the Court is of the view that the payment of the erroneous increase in
petitioner's salary was nonetheless made in good faith. The increase was computed in
accordance with the scale provided by the Office of the Philippine Association of Water
Districts, Inc., which also made an erroneous opinion that R.A. No. 9286 repealed the SSL.
Further, at the time the disbursement was made, no categorical pronouncement, similar
to Mendoza, that the LWDs are subject to the provisions of the SSL, had been issued.

Good faith, however, cannot be appreciated in petitioner's other disbursements. Petitioner

knowingly approved the payments to Atty. Esguerra and Atty. Operaria in spite of the lack of
the necessary approval by the government offices concerned. Further, petitioner's failure to
claim her excessive RATA after the NDs were issued does not evince good faith because, at
that time, CBC No. 18 and NBC No. 498 already provided for the allowable RATA to be given
to GMs of LWDs.

No basis for the issuance of a writ of Injunction

In Calawag v. University of the Philippines Visayas,[30] the Court ruled that the right sought to
be protected must not be doubtful in order for an injunctive relief to be issued, to wit:

To be entitled to a writ of preliminary Injunction, xxx the petitioners must establish the
following requisites: (a) the invasion of the right sought to be protected is material and
substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an
urgent and permanent necessity for the writ to prevent serious damage, xxx When the
complainant's right is thus doubtful or disputed, he does not have a clear legal right
and, therefore, the issuance of injunctive relief is improper.

[Emphasis Supplied]

Here, petitioner failed to show sufficient reasons to justify the issuance of the injunctive
relief. It has been thoroughly discussed that the disbursements were without legal basis as
they either were in excess of the limits provided for by law or were issued without authority.

WHEREFORE, the December 29, 2011 Decision of the Commission on Audit

is AFFIRMED with MODIFICATION in that petitioner be absolved from refunding the
amount paid in the increase of her salary.

SO ORDERED.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo,
Villarama, Jr., Perez, Reyes, Perlas-Bernabe, Leonen, and Jardeleza, JJ., concur.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on November 16, 2015 a Decision/Resolution, copy attached
herewith, was rendered by the Supreme Court in the above-entitled case, the original of
which was received by this Office on December 15, 2015 at 1:35 p.m.

Very truly yours,

(SGD)
FELIPA G. BORLONGAN-ANAMA
Clerk of Court